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NORTH CAROLINA 

REGISTER 



VOLUME 12 • ISSUE 4 • Pages 227 -333 
August 15, 1997 



IN THIS ISSUE 

Executive Order 

Revenue - Tax Review Board 

Voting Rights Letters 

Architecture, Board of 

Environment, Health, and Natural Resources 

General Contractors, Licensing Board for 

Housing Finance Agency 

Human Resources 

Justice 

Medical Board 

Transportation 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 2 7611- 7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 




This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



Digitized by the Internet Archive 

in 2011 with funding from 

University of North Carolina at Chapel Hill 



http://www.archive.org/details/northcarolinareg124nort 



NORTH CAROLINA 
REGISTER 




Volume 12, Issue 4 

Pages 227 - 333 



August 15, 1997 



This issue contains documents officially filed 
through July 25, 1997. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



IN THIS ISSUE 

I. EXECUTIVE ORDERS 

Executive Order 116 227 

11. IN ADDITION 
Revenue 

Tax Review Board 228-235 

Voting Rights Letters 236-239 

in. RULE-MAKING AGENDA 

Environment, Health, and Natural Resources 

Air Quality 240-241 

Health Services 240-241 

Radiation Protection 240 - 241 

TV. RULE-MAKING PROCEEDINGS 

Justice 

NC Sheriffs' Education and Training Standards . . . 242 - 244 
Licensing Boards 

Architecture, Board of 244 - 245 

Medical Board 245 

V. PROPOSED RULES 

Environment, Health, and Natural Resources 

Environmental Management Commission 270 - 292 

Human Resources 

Facility Services 246 - 270 

Licensing Boards 

General Contractors, Licensing Board for 292 - 294 

Medical Board 294-312 

VI. TEMPORARY RULES 
Human Resources 

Medical Assistance 313-314 

Licensing Boards 
Medical Board 314-316 

Vn. APPROVED RULES 317-320 

Environment, Health, and Natural Resources 

Housing Finance Agency 

Human Resources 

Justice 

Transportation 

Vni. RULES REVIEW COMMISSION 321-322 

IX. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 323 - 326 

Text of Selected Decisions 
96 INS 0433 327-332 

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EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 116 
JUVENILE JUSTICE PLANNING COMMITTEE 

WHEREAS, the Executive Organization Act of 1973 
established the Governor's Crime Commission; and, 

WHEREAS, North Carolina General Statutes § 
1438^80 creates the Juvenile Justice Planning Committee as an 
adjunct committee to advise the Governor's Crime Commission 
on matters referred to it which are relevant to juvenile justice; 
and, 

WHEREAS, pursuant to North Carolina General 
Statutes § 143B-480, the composition of the Juvenile Justice 
Planning Committee shall be designated by the Governor 
through executive order; and, 

WHEREAS, the federal Juvenile Justice and 
Delinquency Act of 1974, as amended, requires states to 
establish advisory boards to administer juvenile justice and 
delinquency prevention grants from the United States 
Department of Justice; and, 

WHEREAS, the Juvenile Justice Planning Committee, 
which is also known as the Juvenile Justice and Delinquency 
Prevention Committee, is ideally suited to serve as such an 
advisory board consistent with federal law. 

NOW, THEREFORE, by the power vested in me as 
Governor by the laws and Constitution of the State of North 
Carolina, IT IS ORDERED: 



Section 1. Membership Composition . 

The Juvenile Justice Planning Committee shall consist 
of no more than 33 members appointed by the Governor. The 
membership shall be consistent with all federal requirements 
regarding the composition of advisory boards which administer 
juvenile justice and prevention grants from the United States 
Department Of Justice. Terms of each member shall be two 
years as provided in North Carolina General Statutes § 143B- 
480; provided, however, that the Governor may remove any 
member at any time for misfeasance, malfeasance, or 
nonfeasance or if necessary to ensure continued compliance 
with federal requirements. 

Section 2^ Chairman. 

The Chairman of the Juvenile Justice Planning 
Committee shall be designated by, and shall serve at the 
pleasure of, the Chairman of the Governor's Crime 
Commission. 

Section 3. Administration of Federal Grants. 

The Juvenile Justice Planning Committee shall serve 
as North Carolina's advisory board for purposes of 
administering juvenile justice and delinquency prevention 
grants from the United States Department of Justice. 

Section 4^ Duration. 

This executive order shall be effective immediately and 
shall remain in effect until rescinded. 

Done in the Capital City of Raleigh, North Carolina, 
this the 21st day of July. 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



227 



IN ADDITION 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 

IN THE MATTER OF: 

The Proposed assessment of Controlled Substance Excise 
tax for possession of non-tax-paid Controlled Substance 
on August 4, 1992 by the Secretary of Revenue against 
JOHN B. MELVILLE, JR. and DAVID J. COLLINS 



BEFORE THE 

TAX REVIEW BOARD 



REMAND HEARING OF 
ADMINISTRATIVE 
DECISION NUMBER: 300 



THIS MATTER was heard by the Tax Review Board on remand from the initial determination of the Honorable George 
L. Wainwright, Superior Court Judge of Onslow County, North Carolina on April 22, 1997, in the City of Raleigh, Wake County, 
Nonh Carolina in the office of the State Treasurer. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, attorney at law participating. 

Walter W. Vatcher and Charles K. Medlin, Jr., attorneys at law, appeared on behalf of the Taxpayers; Christopher E. 
Allen, Assistant Attorney General, appeared on behalf of the Department of Revenue. 

On April 11, 1995, the Board conducted an administrative hearing based upon the petitions filed by John B. Melville, Jr 
and David J. Collins (hereinafter "Taxpayers") to review the fmal decision entered by the Assistant Secretary of Revenue on January 
14, 1994. On July 10, 1995. the Board rendered its decision and confirmed the assessment of the controlled substance excise tax 
in the amount of 579,380.00 but reversed the final decision of the Secretary regarding the penalty imposed against the Taxpayers 
and modified the assessment of the penalty to be applicable only to the net amount of the tax assessed remaining unpaid after the 
application of any amount received by the garnishment filed by the Department of Revenue. 

On August 2, 1995, Taxpayers' filed a petition for judicial review of the Tax Review Board's Administrative Decision 
Number 300 with the Superior Court of Onslow County, North Carolina. On February 13, 1997, Judge Wainwright entered an 
initial determination pursuant to the authority of G.S. §150B-51. G.S. §i50B-51(a) provides for the reviewing judge to determine 
whether the agency decision states the specific reasons why the agency did not adopt the [Assistant Secretary's] recommended 
decision. Judge Wainwright stated in the initial determination "[t]hat the Tax Review Board did not offer or state any specific 
reasons why it did not adopt the recommended decision. In modifying the recommended decision, the Tax Review Board did not 
reduce the assessment to a sum certain or the issue remains as to whether the language is capable of being reduced to a sum certain. " 

IT APPEARING TO THE BO.ARD upon review of this matter on remand that no specific reasons were offered to 
determine why the Assistant Secretary's final decision was not adopted; 

AND IT FURTHER APPEARING TO THE BOARD after carefully considering the matters of record and the arguments 
presented at hearing on the remand and upon review of the judge's initial determination that the followings reasons are entered 
regarding why the recommended decision was not adopted in all respects: 

1 . The Department of Revenue attached and garnished bank accounts of the Taxpayers on the assessment date of August 
4, 1992. 

2. A penalty based upon the assessment against the Taxpayers would not accrue until 48 hours after the above referenced 
assessment date. 

3. The Secretary of Revenue is therefore estopped from imposing a penalty based upon non-payment of the controlled 
substance excise tax to the extent that the Department of Revenue obtained a levy and garnishment against the Taxpayers securing 
payment of the tax prior to the time that the penalty would accrue. 

Therefore, the Board determines that the total assessment due and payable by the Taxpayers in this matter for the period 
of August 4, 1992 be and is hereby $79,380.00. 



228 



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August 15, 1997 



12:4 



IN ADDITION 



Entered this the 9" day of July, 1997. 



TAX REVIEW BOARD 

/s/Harlan E. Boyles, Chairman 
State Treasurer 

/s/Jo Anne Sanford, Chair 
Utilities Commission 

/s/Noel L. Allen, member 



12:4 



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August 15, 1997 



229 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE 

TAX REVIEW BOARD 



IN THE MATTER OF: 

The Proposed Assessment of Additional Income Tax 

for the taxable years of 1992. 1993 and 1994 

by the Secretary of Revenue against 

Thomas P. May, Jr. and Sandra G. May 



ADMINISTRATIVE 
DECISION NUMBER: 331 



THIS MATTER was heard before the Tax Review Board on Tuesday, April 22, 1997, in the City of Raleigh, Wake 
County, Nonh Carolina, in the office of the State Treasurer. It involved the petition for administrative review filed by Thomas 
P. May, Jr. and Sandra G. May (hereinafter "Taxpayers") from the Final Decision of Michael A. Hannah, Assistant Secretary for 
Legal and Administrative Services (hereinafter "Assistant Secretary") entered on October 9, 1996, sustaining penalties proposed 
for late payment, late filing and underpayment of estimated income taxes for tax years 1992, 1993, and 1994. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

The Taxpayers did not appear at the hearing. George W. Boylan, Special Deputy Attorney General, appeared at the 
hearing on behalf of the Department of Revenue. 

The issues presented on review were: 

1 . Whether the Secretary erred in sustaining the income tax assessments proposed against the Taxpayers for the taxable 
years 1992, 1993 and 1994. 

2. Whether the proposed assessment should be withdrawn because the Department did not timely respond to Taxpayers' 
request for a hearing. 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. §105- 
241.2(b2). G.S. §105-241.2 states in pertinent part: 

(b2). ... "after conducting a hearing, the Board shall confirm, modify, reverse, reduce or 
increase the assessment or decision of the Secretary. " 

After the hearing, the Board carefully reviewed the petition, the brief, the final decision and the record of the proceeding 
before the Assistant Secretary and upon review of the documents the Board determined that the findings of fact made by the 
Assistant Secretary were fully supported by competent evidence in the record, that the conclusions of law made by the Assistant 
Secretary were fully supported by the findings of fact, and that the decision of the Assistant Secretary was fully supported by the 
conclusions of law. Therefore, the Board determined that the Assistant Secretary did not err in sustaining the proposed assessment 
against the Taxpayers. 

The Board further determined that the assessment may not be canceled simply because an administrative hearing was not 
timely provided to the Taxpayers. Effective January 1, 1994, G.S. §105-241. 1(c) has directed the Department to furnish an 
administrative hearing within 90 days after the timely request for a hearing is filed by a taxpayer. Even though an affirmative duty 
is placed upon the Secretary to satisfy the statute's guidelines, the legislature specifically elected not to couple this requirement with 
sanctions. Furthermore, Taxpayers have failed to provide any evidence of bad faith on the part of Department regarding the delay 
in the hearing. Therefore the Board determined that the Assistant Secretary did not err in refusing to cancel the assessment because 
the hearing was not timely. 

rr IS THEREFORE ORDERED, that the Final Decision of the Assistant Secretary is CONFIRMED in every respect. 



230 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



IN ADDITION 



Entered this the 8" day of July, 1997. 



TAX REVIEW BOARD 

/s/Harlan E. Boyles, Chairman 

/s/Jo Anne Sanford, Chair 
Utilities Commission 

/s/Noel L. Allen, member 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



231 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE 

TAX REVIEW BOARD 



IN THE MATTER OF: 

The Proposed assessment of Controlled Substance Excise 
tax for possession of non-tax-paid Controlled Substance 
on March 28, 1991 by the Secretary of Revenue against 
MICHAEL ANTONIO GOODMAN 



ADMINISTRATIVE 
DECISION NUMBER: 



332 



THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on Tuesday, April 22, 1997, in the City 
of Raleigh, Wake County, North Carolina in the office of the State Treasurer. It involved a petition for administrative review filed 
by Michael Antonio Goodman (hereinafter "Taxpayer") of the final decision of Michael A. Harmah, Assistant Secretary for Legal 
and Administrative Services (hereinafter "Assistant Secretary") entered on October 24, 1996 sustaining a proposed assessment of 
controlled substance excise tax for possession of non-tax-paid controlled substance for the period of March 28, 1991 . 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel A. Allen, Attorney at Law participating. 

Taxpayer did not appear and was not represented by counsel at the hearing; Christopher E. Allen, Assistant Attorney 
General, appeared at the hearing on behalf of the Department of Revenue. 

The purpose of this Board is to provide administrative review to a Taxpayer from the Secretary of Revenue's decision 
sustaining the assessment of tax or additional tax pursuant to North Carolina Revenue Laws. The scope of administrative review 
for petitions filed with the Board is governed by G.S. § 105-24 1.2(b2). G.S. §105-241.2 states in peninent part: 

(b2). ..."after conducting a hearing under this section, the Board shall confirm, modify, 
reverse, reduce, or increase the assessment or decision of the Secretary." 

In the Petition, Taxpayer's primary argument focused on the determination by the federal magistrate judge in the criminal 
proceeding. In that proceeding the judge ruled that the trooper's initial stop was unconstitutional. By ruling that the trooper's 
initial stop was unconstitutional, the judge granted Taxpayer's motion to suppress evidence that was obtained by the trooper in the 
search. Thus, the Taxpayer argued that the evidence obtained in the search is likewise excluded from the Secretary. The argument 
presented by the Taxpayer to the Board was not tendered to the Secretary of Revenue until after the deadline to submit briefs had 
expired. Therefore the Secretary based the final decision upon the record appearing at the time of the hearing. 

Counsel for the Secretary addressed the exclusionary rule regarding illegal or tainted evidence in the brief submitted to 
the Board. In the brief counsel for the Secretary stated that generally the exclusionary rule does not operate to bar illegally or 
tainted evidence from civil proceedings. However, where the evidence is found to be invalid and excluded from criminal action, 
that evidence is properly excluded from a related civil administrative proceeding. Turner v. Lawton, (Okla.) 733 P. 2d 375, cert, 
den. 483 U.S. 1007, 97 L.Ed.2d 738, 107 S.Ct. 3232 (1987). In light of argument submitted to the Board in Taxpayer's Petition, 
counsel for the Secretary asked the Board to remand this matter to the Secretary for further findings of fact and reconsideration. 

IT APPEARING TO THE BOARD upon review of the Petition and the Brief that there were apparent discrepancies in 
the record before the Secretary; 

IT IS THEREFORE ORDERED, that the Taxpayer's case is Remanded to the Secretary for funher findings of fact and 
reconsideration. 



232 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



IN ADDITION 



Entered this the 8" day of July, 1997. 



TAX REVIEW BOARD 

/s/Harlan E. Boyles, Chairman 

/s/Jo Anne Sanford, Chair 
Utilities Commission 

/s/Noel L. Allen, Member 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



233 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE 

TAX REVIEW BOARD 



IN THE MATTER OF: 

The Proposed assessment of Controlled Substance Excise 
tax for possession of non-tax-paid Controlled Substance 
on February 19, 1996 by the Secretary of Revenue against 
DONNA TODD (DAWSON) 



ADME>nSTRATrVE 
DECISION NUMBER: 333 



THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on Tuesday, April 22, 1997, in the City 
of Raleigh, Wake County, North Carolina in the office of the State Treasurer. It involved a petition for administrative review filed 
by Donna Todd (Dawson) (hereinafter "Taxpayer") of the Revised Final Decision of Michael A. Hannah, Assistant Secretary for 
Legal and Administrative Services (hereinafter "Assistant Secretary") entered on July 26, 1996 sustaining a proposed assessment 
of controlled substance excise tax for possession of non-tax-paid controlled substance for the period of February 19, 1996. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel A. Allen, Attorney at Law participating. 

Taxpayer did not appear and was not represented by counsel at the hearing; Christopher E. Allen, Assistant Attorney 
General, appeared at the hearing on behalf of the Department of Revenue. 

After conducting the hearing, the Board reviewed the petition, brief, revised Final Decision and the record of the matter 
in the proceeding before the Assistant Secretary . The dispositive issue before the Board was whether the Assistant Secretary erred 
in sustaining the controlled substance excise tax including the penalty and interest imposed against the Taxpayer. In the petition, 
the Taxpayer challenged the constitutionality of the statute under which the tax is assessed. 

N.C.G.S. §105-113.105 eL seq. provides for the levy of an excise tax on persons (dealers) who possess a non-tax-paid 
controlled substance. The tax is due within 48 hours after the dealer acquires a non-tax-paid controlled substance. As a general 
rule, a proposed assessment of a tax is presumed to be correct pursuant to N.C.G.S. §105-241. 1(a), thus the burden is on the 
Taxpayer to overcome the presumption and rebut the assessment. 

The purpose of this Board is to provide administrative review to a Taxpayer from the Secretary of Revenue's decision 
sustaining the assessment of tax or additional tax pursuant to North Carolina Revenue Laws. The scope of administrative review 
for petitions filed with the Board is governed by N.C.G.S. §105-241. 2(b2). N.C.G.S. §105-241.2 states in pertinent part: 

(hi). ..."after conducting a hearing under this section, the Board shall confirm, modify, 
reverse, reduce, or increase the assessment or decision of the Secretary. " 

N.C.G.S. § 105-241.2 does not give this administrative board the authority or jurisdiction to rule on the constitutionality 
of a statute. Great Am. Ins. Co. v. Gold, 254 N.C. 168, 118 S.E.2d. 792 (1961). 

THE BOARD HAVING REVIEWED THE PETITION AND RECORD MADE IN THIS PROCEEDING AND 
HAVING CAREFULLY CONSIDERED THE MATTERS OF RECORD AND THE ARGUMENTS PRESENTED RENDERED 
THE FOLLOWING DECISION: that the findings of fact made by the Assistant Secretary were fully supported by competent 
evidence in the record; that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact; 
and that the decision by the Assistant Secretary sustaining the tax assessment was fully supported by the conclusions of law. 

IT IS THEREFORE ORDERED, that the Final Decision of the Assistant Secretary sustaining the assessment is 
CONFIRMED. 

Since the Tax Review Board is not empowered to pass upon the constitutionality of a statute, or its application to a 
particular assessment or taxpayer, the Taxpayer's argument regarding the constitutionality of the statute was not properly before 
the Board. 



234 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



T 



IN ADDITION 



Entered this the 8'" day of July, 1997. 



TAX REVIEW BOARD 

/s/Harlan E. Boyles, Chairman 

/s/Jo Anne Sanford, Chair 
Utilities Commission 

/s/Noel L. Allen, Member 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



235 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



IKP:ZJB:JBG:TGL:emr Voting Section 

DJ 166-012-3 P.O. Box 66128 

97-1403 Washington. D.C. 20035-6128 

July 7, 1997 

Richard J. Rose, Esq. 

Poyner & Spruill 

P.O. Box 353 

Rocky Mount, North Carolina 27802 

Dear Mr. Rose: 

This refers to the merger of the Town of Battleboro into the City of Rocky Mount as authorized by Chapter 578 (1996), 
the annexation of the Birchfield and Walkenown areas (adopted June 24, 1996) and the 1997 redistricting plan for the City of Rocky 
Mount in Edgecomb and Nash Counties, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting 
Rights Act, 42 U.S.C. 1973c. We received your submission on May 16, 1997. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement 
of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

Isabelle Katz Pinzler 

Acting Assistant Attorney General 

Civil Rights Division 

By: 

for Elizabeth Johnson 
Chief, Voting Section 



236 NORTH CAROLINA REGISTER August 15, 1997 12:4 



IN ADDITION 



IKP:DHH:KIF:gmh:lrj 
DJ 166-012-3 
97-1342 
97-1761 



U.S. Department of Justice 
Civil Rights Division 



Voting Section 

P.O. Box 66128 

Washington, D.C. 20035-6128 



July 8, 1997 



Z. Creighton Brinson, Esq. 

Taylor, Brinson & DeLoatch 

P.O. Drawer 308 

Tarboro, North Carolina 27886-0308 

Dear Mr. Brinson: 

This refers to the creation of Edgecombe County Water and Sewer District No. 2 and the procedures for conducting the 
July 15, 1997, special bond election for the district in Edgecombe County, North Carolina, submitted to the Attorney General 
pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on May 9 and June 25, 1997. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement 
of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

Isabelle Katz Pinzler 

Acting Assistant Attorney General 

Civil Rights Division 

By: 

for Elizabeth Johnson 
Chief, Voting Section 



,12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



237 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 

IKP:GS;SWJ:tlb Voting Section 

DJ 166-012-3 PO. Box 66128 

97-1442 Washington, D.C. 20035-6128 



July 17, 1997 



Donald I. McRee, Jr., Esq. 

County Attorney 

P.O. Box 39 

Elizabeth City, North Carolina 27907-0039 

Dear Mr. McRee: 

This refers to the realignment of voting precincts and Chapter 568 (1996), which authorizes, and the county's use of, the 
Votronic DRE Touch Screen Voting System for absentee voting for Pasquotank County, North Carolina, submitted to the Attorney 
General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on May 19, 1997. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement 
of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

Isabelle Katz Pinzler 

Acting Assistant Attorney General 

Civil Rights Division 

By: 

Elizabeth Johnson 

for Chief, Voting Section 



238 NORTH CAROLINA REGISTER August 15, 1997 12:4 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



IKP:DHH:KIF:emr Voting Section 

DJ 166-012-3 P.O. Box 66128 

97-1495 Washington, D.C. 20035-6128 



July 17, 1997 



Albert M. Benshoff, Esq. 

City Attorney 

P. O. Box 1388 

Lumberton, North Carolina 28359-1388 



Dear Mr. Benshoff: 



This refers to the annexation (Ordinance No. 1611 (1997)) and its designation to a district of the City of Lumberton in 
Robeson County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 
1973c. We received your submission on May 28, 1997. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement 
of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

Isabelle Katz Pinzler 

Acting Assistant Attorney General 

Civil Rights Division 

By: 

Elizabeth Johnson 
Chief, Voting Section 



12:4 NORTH CAROLINA REGISTER August 15, 1997 239 



RULE-MAKING AGENDA 



An agency may choose to publish a rule-making agenda which senes as a notice of rule-making proceedings if the agenda 
includes the information required in a notice of rule-making proceedings. The agency must accept comments on the 
agenda for at least 60 days from the publication date. Statutory reference: G.S. 150B-21.2. 



TITLE 15A - DEPARTMENT OF ENVIRONIVIENT, HEALTH, AND NATURAL RESOURCES 

This agenda will serve as the notice of rule-making proceedings for the following rule-making bodies from August 15, 1997 through 
October 14, 1997: 

Environmental Management Commission - to rules codified in 15A NCAC 2; 
Radiation Protection Commission - to rules codified in 15A NCAC 11; and 
Commission for Health Services - to rules codified in 15A NCAC 18A. 

DEHNR Regulatorj Agenda Index - July 25, 1997 

AIR QUALITY 

APA # SUBJECT RULE CITATION # 

E2311 Acid Rain Procedures 15A NCAC 2Q 0400 

ENVIRONMENTAL HEALTH/ENV. HEALTH 

APA # SUBJECT RULE CITATION ff 

H6793 Sanitation of Restaurants and 15A NCAC 18A .2601 - .2645 

other Food Handling 

Establishments 

RADIATION PROTECTION 

APA^ SUBJECT RULE CITATION H 

E2315 Radiation Protection 15A NCAC 11 .0100, .0300, .0400, .1100, .1400, .1600 

DEHNR Regulatory Agenda - July 25, 1997 

APA #: E2311 

SUBJECT: Acid Rain Procedures 

RULE CITATION #: 15A NCAC 2Q 0400 

STATUTORY AUTHORITY: GS 143-215. 3(a)(1), 143-215. 107(a)(8), 143-215.108 

DIVISION/SECTION: AIR QUALITY 

DIVISION CONTACT: Thomas Allen 

DIVISION CONTACT TEL#: (919)733-1489 

DATE INITIATED: 6/20/97 

DURATION OF RULE Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

To adopt the federal acid rain nitrogen o.xides (NOx) emissions reduction program. 
SCOPE/NATURE/SUMMARY : 

Section 1 5 A NCAC 2Q .0400, Acid Rain Procedures, would be amended to incorporate the federal procedures and 

requirements of 40 CFR Part 76, Acid Ram Program: Nitrogen Oxides Emission Reduction Program. Most likely 

the federal requirements will be adopted by reference. 

40 CFR Part 76 limits eimssions of nitrogen o.xide emissions from coal-fired utility units to reduce acid rain The 
rules that are being considered for incorporation into 15A NCAC 2Q 0400 can be found in 60 FR 18751 (Apnl 
13. 1995) and 61 FR 671 12 (December 19, 1996) The first referenced Federal Register contains the onginally 
adopted rules, and the second contains revisions to those rules What will be considered for adoption are the rules 
in 40 CFR Part 76 as revised 



240 NORTH CAROLINA REGISTER August 15, 1997 12:4 



RULE-MAKING AGENDA 



APA #:E2315 

SUBJECT: 

RULE CITATION # I5ANCAC II 0100, .0300, .0400, 1 100, .1400, 1600 

STATUTORY AUTHORITY: 

DIVISION/SECTION: RADIATION PROTECTION 

DIVISION CONTACT: Wanda Shackleford 

DIVISION CONTACT TEL#: (919)571-4141 

DATE INITIATED: 6/27/97 

DURATION OF RULE: Permanent 8/15/98 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Concept Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The Radiation Protection Commission and the Division of Radiation are proposing rulemaking actions in Section 
.0100, 0300, 0400, .1 100, 1400 and 1600 The Radiation Protection Commission also is undertaking with the 
Division an overall review of all of the rules in Chapter 11 of 15 A NCAC within the ne.xt two years. 

Sections 0100 and .0300 will require amendments and adoption for compatibility with the U S. Nuclear 
Regulator! Commission's rules Section .1600 became effective Januar> 1, 1994 as a replacement for Section 
.0400 Section .0400 will now be repealed Section 1100 addresses the fee structure for all registrants and 
licensees. Section 1400 which addresses the requirements for tanning facilities needs revision to improve these 
rules. 

APA #: H6793 

SUBJECT: Sanitation of Restaurants and other Food Handling Establishments 

RULE CITATION #: 15A NCAC 18A .2601 - .2645 

STATUTORY AUTHORITY: GS 130A-248 

DIVISION/SECTION: ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES 

DIVISION CONTACT: Michael Rhodes 

DIVISION CONTACT TEL#: (919)715-0930 

DATE INITIATED: 7/24/97 

DURATION OF RULE: Permanent 7/1/98 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

15ANCAC 18A.2600 

"Rules Governing the Sanitation of Restaurants and Other Food Handling Establishments" are in need of 
additional definition and clarification. This additional definition and clanfication is necessary to increase 
uniformity in interpretation and application of the rule on a statewide basis. Also, there is a need to include 
recommended changes from the 1997 Food and Drug Administration food code. Inclusion of several of the FDA 
recommended changes will help North Carolina sta>' abreast of the e\ er changing world of science and technology. 
These changes are needed to best protect the Public Health of the Citizens of North Carolina. 

SCOPE/NATURE/SUMMARY : 
15ANCAC 18A 2600 

"Rules Governing the Sanitation of Restaurants and Other Food Handling Establishments" has a very broad scope 
pertaining to the Sanitation Ie\els required for food safety and the protection of Public Health at Food handling 
establishments in North Carolina. 



12:4 NORTH CAROLINA REGISTER August 15, 1997 241 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agency must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. 
Publication of a temporary rule serxes as a Notice of Rule-making Proceedings and can be found in the Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency ser\'es as Rule-making Proceedings and 
can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND 
TRAINING STANDARDS COMMISSION 

A Jotice of Rule-making Proceedings is hereby given by the 
liNC Sheriffs' Education and Training Standards 
Commission in accordance with G.S. 150B-21.2. The agency 
shall subsequently publish in the Register the text of the rule(s) 
it proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 12 

NCACIOB .0101. .0202. .0204, .0206. .0304. .0505. .0601, 
.0603. .0605, .0702. .0703. .0704. .0705. .0706. .0801. 
.0802. .0903. .0908. .0909. .0910. .0911. .1002. .1004. 
.1005. .1006. .1101, .1102, .1103, .1104. .1105, .1202, 
.1204, .1205, .1206. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 17-E 

Statement of the Subject Matter: 

12 NCAC JOB .0101 - This Rule sets out the physical location 
and mailing address for the Sheriffs' Standards Commission. 
12 NCAC JOB .0202 - This Rule sets out sanctions for 
violations of the Commission's rules by agencies or schools. 
12 NCAC lOB .0204 - This Rule sets out the Commission's 
authority' to suspend, revoke or deny the certification of an 
applicant or certified justice officer. This Rule sets out the 
Commission 's authority to deny certification to an applicant if 
he has 4 or more Class A misdemeanors dated within 2 years 
of his date of appointment . 

12 NCAC lOB .0206 - This Rule sets out the Commission s 
authority to issue summary suspensions or denials of justice 
officer certification. 

12 NCAC lOB .0304 - This Ride sets out the Commission's 
Medical Examination requirement. 

12 NCAC lOB .0505 - This Rule sets out the criteria for 
determining what prior training and experience a deputy sheriff 
may be credited and what training may be waived. 
12 NCAC lOB .0601 - This Rule lists the topic areas and 
approximate minimum instructional hours for each area in the 
Detention Officer Certification Course. This Rule defines a 
"Detention Officer Certification Course Management Guide". 
12 NCAC lOB .0603 - This Rule sets out the criteria for 
determining what prior training and experience a detention 
officer may be credited and what training may be waived. 
12 .\CAC lOB .0605 - This Rule explains procedures for 
completion of the Detention Officer Certification Course. 



12 NCAC lOB .0702 - The Criminal Justice Standards Division 

address is listed. 

12 NCAC lOB .0703 - This Rule describes the administration 

of the Detention Offcer Certification Course. 

12 NCAC lOB .0704 - This Rule defines the responsibilities of 

a school director. 

12 NCAC 108 .0705 - This Rule is in regards to the 

certification of school directors. 

12 NCAC lOB .0706 - This Rule defines the terms and 

conditions of a school director's certification. 

12 NCAC lOB .0707 - This Rule defines the Commission's 

authorury to suspension, revocation, or denial of School 

Director's certification. 

12 NCAC lOB .0801 - .0802 - This Section involves the 

accreditation of Justice Officer Schools and Training Courses. 

12 NCAC lOB .0903 - This Rule is in regards to the 

certification of Instructors for detention officer certification. 

12 NCAC lOB .0908 - This Rule is in regards to certification 

requirements for limited lecturer instructors. 

12 NCAC lOB .0909 - This Rule states the terms of a limited 

lecturer instructor certification. 

12 NCAC lOB .0910 - This Rule is in regards to the use of 

guest participants in the Detention Officer Certification Course. 

12 NCAC lOB .0911 - This Rule is in regards to the 

suspension, revocation or denial of a Detention Officer 

Instructor Certification. 

12 NCAC lOB .1002 - This Rule lists the general provisions for 

obtaining a Deputs' Sheriff Professional Certificate. 

12 NCAC lOB .1004 - This Rule explains the years of ser\'ice 

and training needed in order to become eligible for an 

Intermediate Law Enforcement Certificate. 

12 NCAC lOB .1005 - This Rule explains the years of service 

and training needed in order to become eligible for an 

Advanced Law Enforcement Certificate. 

12 NCAC lOB .1006 - This Rule explains how to apply for the 

certificate program. 

12 NCAC lOB .1102 - This Rule lists the general provisions for 

obtaining a Serxice Award. 

12 NCAC lOB .1103 - .1104 - These Rules details the 

Intermediate and Advanced service awards program. 

12 NCAC lOB .1105 - This Rule explains the years of ser\ice 

and training needed in order to become eligible for a Ser\ice 

Award. 

12 NCAC lOB 1202 - This Rule lists the general provisions for 

obtaining a Detention Officer Professional Certificate. 

12 NCAC lOB .1204 - This Rule identifies the requirements of 

the Intermediate Detention Officer's Professional Certificate. 

12 NCAC lOB .1205 - This Rule explains the years of service 

and training needed in order to become eligible for an 

Advanced Detention Officer Certificate. 



242 



NORTH CAROLINA REGISTER 



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12:4 



RULE-MAKING PROCEEDINGS 



12 NCAC lOB .1206 - This Rule explains how to apply for the 
certificate program. 

Reason for Proposed Action: 

12 NCAC lOB .0101 - This Rule change is being made due to 

the Commission moving to a new building. 

12 NCAC lOB .0202 - This Rule change merely alters the 

wording to be consistent with other rules within the 

Commission 's administrative code; and to make clear that the 

Probable Cause Committee of the Sheriffs' Commission, which 

has been formed in accordance with the Commission 's bylaws, 

has the authority to determine the period of time appropriate 

for the sanction set out in paragraph (5). 

12 NCAC 108 .0204 - This Rule change adds language to 

make it clear that any attempts by justice officers to cheat on 

their in-service firearms requirement is punishable by the 

Commission. This change merely clarifies that should the 

Class A misdemeanors all be dated outside the 2 year period, 

certification shall be issued. 

12 NCAC lOB .0206 - This Rule change adds authority for the 

Director, on behalf of the Commission, to issue a summary 

denial in the event an applicant refuses to submit to the 

Commission-mandated drug screen; and to issue a summary 

suspension in the event an applicant /justice officer produces a 

positive drug screen. 

12 NCAC lOB .0304 - This Rule change alters the language of 

the rule to comply with the new medical forms adopted by the 

Commission. 

12 NCAC lOB .0505 - This Rule change requires a deputy 

sheriff to not only be employed with a prior agency in order to 

be credited with the time served at that agency, but to also be 

certified for that period of employment. 

12 NCAC lOB .0601 - The amendments to this Rule are as 

follows; This changes the total number of hours of instruction 

for the Detention Officer Certification Course. This change is 

being made to change one topic area, add another topic area, 

and increase the hours of the course. This change requires the 

certified school director to adhere to the guide before, during. 

and afier a course delivery. 

12 NCAC lOB .0603 - This amendment requires a detention 

officer to not only be employed with a prior agency in order to 

be credited with the time served at that agency, but to also be 

certified for that period of employment. 

12 NCAC lOB . 0605 - This amerulment would allow a trainee 

to participate in only one partial delivery of a course in order 

to make up a deficiency within 120 days, and allows the trainee 

to retest on an end block unit test only once during that partial 

enrollment. 

12 NCAC lOB .0702 - The Criminal Justice Standards Division 

has relocated, therefore, the rule change of deleting "1 West 

Morgan Street " was necessary in updating this particular rule. 

12 NCAC lOB .0703 - The amendments to this Rule are as 

follows; This change would allow no more than t^vo school 

directors to become certified per each accredited 

institution/agency. The rule also requires that the certified 

school director(s) be readily available at all times. This 

change would have the school director and the accredited 



institution/agency refer to the Detention Officer Course 
Management Guide to determine the proper facility, equipment, 
materials, and supplies needed for a course delivery. The 
partial deletion of this Rule is the removal of the block of 
instruction entitled "Unarmed Self-Defense". The additions to 
this Rule are the standards needed for the delivery of the 
"Specialized Control Techniques" block of instruction. This 
addition specifies the type of jail cell needed in performing the 
required block of instruction entitled "Contraband Searches". 
This addition states the standards needed for delivery of the 
"Fire Emergencies in the Jail" block of instruction. This 
addition states the standards needed for delivery of the 
"Physical Assessment" block of instruction. This addition 
states the standards needed for delivery of the "First Aid and 
CPR" block of instruction. This addition is to allow an 
accredited institution/agency to make facility arrangements with 
another entity if the requirements are not able to be met at their 
own facility. 

12 NCAC lOB .0704 - Changes occur in this Rule for 
structural purposes; also the amendments to the rule are as 
follows; This addition is to require the school director to 
schedule the required number of instructors for specific topic 
areas of the Detention Officer Certification Course. This 
change to the rule refers to the Detention Officer Certification 
Course Management Guide for reference to required materials, 
etc. needed for the delivery of a course. This addition defines 
how the school director is to be available. 
12 NCAC lOB .0705 - This addition requires a school director 
to attend a school director 's orientation prior to the delivery of 
a Detention Officer Certification Course. 
12 NCAC lOB .0706 - The rule changes are for structure; and 
paragraph (3) has been added to specify that the school 
director needs to comply with the accreditation requirements. 
12 NCAC lOB .0707 - The change authorizes the suspension, 
revocation or denial of a school director 's certification when 
the school director has not complied with the terms and 
conditions in 12 NCAC lOB .0706. 

12 NCAC lOB .0801 - .0802 - All additions to this Section of 
the administrative code are in regard to the implementation of 
new accreditation standards. 

12 NCAC lOB .0903 - This Rule change requires all instructors 
to remain knowledgeable in their specific area of certification 
and to attend any curriculum updates. 
12 NCAC lOB .0908 - The following are the changes to this 
particular rule; This Rule change substitutes "Specialized 
Control Techniques" for "Unarmed Self-Defense" as the block 
of instruction. This Rule change would require all limited 
lecturer instructors to possess current valid CPR certification. 
This Rule change is a deletion of language regarding 
"Unarmed Self-Defense" and is an addition of the requirements 
for the new block of instruction "Specialized Control 
Techniques ". 

12 NCAC lOB .0909 - The amendments to this rule are as 
follows; This Rule change would require the instructor to 
continuously possess valid CPR certification for renewal 
purposes. This Rule change would require the instructor to 
continuously possess valid CPR certification for renewal 



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243 



RULE-MAKING PROCEEDINGS 



purposes. 

12 NCAC lOB .0910 - This Rule change restricts the use of 
guest participants from assisting in the limited lecturer block of 
instruction. 

12 NCAC lOB .0911 - This Rule change authorizes the denial, 
suspension, or revocation of an instructor's certification for 
failing to attend and successfully complete any instructor 
training updates. 

12 NCAC lOB .1002 - The amendments to this Rule are as 
follows: This Rule change would not allow a justice officer 
that is subject to suspension or revocation proceedings to 
become eligible for a certificate program. This Rule change 
would require a justice officer to be a full time deputy sheriff in 
order to apply for this certificate program. This Rule change 
would require a justice officer to be a full time deputy sheriff in 
order to apply for this certificate program. This change 
clarifies what is acceptable as an education point toward the 
professional certificate program for deputies. This change 
clarifies what is acceptable as a training point toward the 
professional certificate program. This change clarifies what 
type of experience is acceptable for the professional certificate 
program. 

12 NCAC 108 .1004 - The amendments to this Rule are as 
follows: This Rule modification specifically spells out the types 
of degrees. This Rule change specifies that correspondence or 
vocational courses shall not be accredited toward education 
points. 

12 NCAC lOB .1005 - The amendments to this Rule are as 
follows: This Rule modification specifically spells out the types 
of degrees. This Rule change specifies that correspondence or 
vocational courses shall not be accredited toward education 
points. 

12 NCAC lOB .1006 - The amendments to this Rule are as 
follows: This Rule change clarifies what is acceptable as 
verification of education. This Rule change clarifies what is 
acceptable as verification of training. This change clarifies the 
type of applicant's length of service that is acceptable for this 
program. This change is in structure only. 
12 NCAC lOB .1101 - This Rule change clarifies that the 
purpose of the service award program is to award senice in 
North Carolina only. 

12 NCAC lOB .1102 - The amendments to this Rule are as 
follows: This Rule change would not allow a justice officer 
that is subject to suspension or revocation proceedings to 
become eligible for a service award. This Rule change would 
require a justice officer to be a full time justice officer in order 
to apply for this serx'ice award program. 
12 NCAC lOB .1103 - .1104 - The partial deletion of these 
rules is to eliminate repetitious information. 
12 NCAC lOB .1105 - This Rule change specifically indicates 
the type of applicant 's length of service that is acceptable for 
this program. 

12 NCAC lOB .1202 - The amendments to this Rule are as 
follows: This Rule change would require a detention officer to 
befidl time in order to apply for this certificate program and 
would not allow a detention officer that is subject to suspension 
or revocation proceedings to become eligible for certificate 



program. This Rule change clarifies what is acceptable as an 
education point toward the professional certificate program for 
detention officers. This Rule change clarifies what is 
acceptable as training point toward the professional certificate 
program for detention officers. This Rule change specifically 
indicates the type of applicant's length of service that is 
acceptable for this program. 

12 NCAC lOB .1204 - The amendments to this Rule are as 
follows: This Rule modification specifically spells out the types 
of degrees. This Rule change specifies that correspondence or 
vocational courses shall not be accredited toward education 
points. 

12 NCAC lOB .1205 - The amendments to this Rule are as 
follows: This Rule modification specifically spells out the types 
of degrees. This Rule change specifies that correspondence or 
vocational courses shall not be accredited toward education 
points. 

12 NCAC lOB .1206 - The amendments to this Rule are as 
follows: This Rule change clarifies what is acceptable as 
verification of education. This Rule change clarifies what is 
acceptable as verification of training. This Rule change 
clarifies the type of applicant's length of service that is 
acceptable for this program. This is simply a structure change. 

Comment Procedures: Please contact the agency contact 
person with any questions or comments concerning this 
information. Barbara D. Moore, NC Sheriffs ' Education and 
Training Standards Commission, PO Drawer 629. Raleigh, NC 
27602, (919) 716-6460. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 2 BOARD OF ARCHITECTURE 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Board of Architecture in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

21 NCAC 2 .0208. .0210, .0213. The Board is also proposing 
the adoption of new rules setting out requirements of the 
continuing education program in the course of rule-making. 
Other rules may be proposed in the course of the rule-making 
process. 

Authority for the rule-making: G.S. 83A-6, 83A-1I 

Statement of the Subject Matter: The Rules proposed in this 
Section will adopt guidelines and standards for continuing 
education required for individuals licensed by this Board. 

Reason for Proposed Action: No provision for continuing 
education currently exists. Due to the increasing complexity of 



244 



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12:4 



RULE-MAKING PROCEEDINGS 



building design, as well as potential impediments to 
reciprocity, the Board believes it is in the best interest of the 
public and the profession to require continuing education for 
those it licenses. 

Comment Procedures: Written comments on the subject 
matter of the proposed rule-making may be submitted until 
October 14, 1997 to Kathleen Hansinger, Executive Director, 
North Carolina Board of Architecture, 127 W. Hargett Street, 
Suite 304, Raleigh, NC 27601. 



received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 21 

NCAC 32B - Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 90-6 

Statement of the Subject Matter: Licensing by endorsement, 
by e.xamination, and without examination for full license, 
special license, volunteer license and any other physician 
license category. 



CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

SUBCHAPTER 32B - LICENSE TO 
PRACTICE MEDICINE 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Medical Board in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 



Reason for Proposed Action: All rules pertaining to licensing 
by endorsement, by examination, and without examination have 
over time become a document which is difficult for applicants 
to interpret. 

Comment Procedures: Written comments may sent to the rule- 
making coordinator: Helen D. Meelheim through October 14, 
1997. Helen D. Meelheim, NC Medical Board, PO Box 20007, 
Raleigh. NC 27619 - Phone: (919) 828-1212. 



12:4 



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August 15, 1997 



245 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory 
reference: G.S. 150B-21.2. 



N 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

otice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends to adopt rules cited as 
10 NCAC 3R .3002, .3051 - .3088. Notice of Rule-making Proceedings was published in the Register on February 3, 1997. 



Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 10:00 a. m. on October 14. 1997 at the Council Building, Conference Room 201, Division 
of Facility Services , 701 Barbour Drive, Raleigh, NC 27603. 

Reason for Proposed Action: To adopt permanent rules to replace the temporary rules for the 1997 State Medical Facilities Plan 
(SMFP). The SMFP sets forth policies and need determinations for health service facilities and services. 

Comment Procedures: Persons who wish to make written or verbal comments regarding these proposed rules should contact: 

Mr. Jackie Sheppard, Rule-making Coordinator 

Division of Facility Services 

PO Box 29530 

Raleigh, NC 27626-0530 

Telephone: (919) 733-2342: FAX: (919) 733-2757 

Verbal and written comments will be received through the date of the public hearing. The deadline for submission of written 
comments is October 14, 1997. 

Fiscal Note: Rules 10 NCAC 3R .3072 - .3074, .3076, .3078 - .3079 do affect the expenditures or revenues of state or local 
government funds. These Rules do have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month 
period. 

Rules 10 NCAC3R .3002, .3051 - .3071, .3075, .3077, .3080 - .3088 do not affect the expenditures or revenues of state or local 
government funds. These Rules do not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12- 
month period. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIHCATE OF NEED REGULATIONS 

SECTION .3000 - PLANNING POLICIES AND NEED DETERMINATIONS 

.3002 APPLICABILITY OF RULES RELATED TO THE 1996 STATE MEDICAL FACILITIES PLAN 

Rules .3001. .3010. .3020. .3030. .3032. .3040. and .3050 of this Section do not apply to cenificate of need applications for 
which the scheduled review period begins alter Januar\' L, 1997. 

Authority G.S. 131E-176(25); 131 £-177(1): 131E-183(b). 

.3051 APPLICABILITY OF RULES RELATED TO THE 1997 STATE MEDICAL FACILITIES PLAN 

Rules .3052 through .3054 and .3056 through .3088 of this Section apply to certificate of need applications for which the 
scheduled review period begins on or after January J^ 1997. In addition. Rule .3055 of this Section will be used to implement 
procedures described within k after January _L 1997. 

Authority G.S. 131E-176(25): 131E-177(1): 131E-183(b). 



246 NORTH CAROLINA REGISTER August 15, 1997 12:4 



PROPOSED RULES 



.3052 CERTIFICATE OF NEED REVIEW CATEGORIES 

The agency has established nine categories of facilities and services for certificate of need review and will determine the 
appropriate review category or categories for all applications submitted pursuant to JO NCAC 3R .0304. For proposals which 
include more than one category, the agency may require the applicant to submit separate applications. If it is not practical to submit 
separate applications, the agency will determine in which category the application will be reviewed. The review of an a pplication 
for a certificate of need will commence in the next review schedule after the application has been determined to be complete. The 
nine categories of facilities and services are: 

(1) Category A. Proposals for acute health service facilities, except those proposals included in Categories B through H. 
including but not limited to the following types of projects: renovation, construction, equipment, and acute care services. 

(2) Category B. Proposals for long-term nursing facility beds: new continuing care facilities applying for exemption under 
10 NCAC 3R .3083(b): and relocations of nursing facility beds under 10 NCAC 3R .3083(d). 

(3) Category C. Proposals for new psychiatric facilities: psychiatric beds in existing health care facilities: new intermediate 
care facilities for the mentally retarded (ICF/MR) and ICF/MR beds in existing health care facilities: new substance abuse 
and chemical dependency treatment facilities: substance abuse and chemical dependency treatment beds in existing health 
care facilities. 

(4) Category P. Proposals for new dialysis stations in response to the "county need" or "facility need" methodologies: and 
relocations of existing dialysis stations to another county. 

(5) Category E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient rehabilitation beds in other 
health care facilities: and new or expanded ambulatory surgical facilities except those proposals included in Category H. 

(6) Category F. Proposals for new home health agencies or offices, new hospices, new hospice inpatient facility beds, and 
new hospice residential care facility beds. 

(7) Category G. Proposals for conversion of hospital beds to nursing care under 10 NCAC 3R .3083(a): and demonstration 
projects. 

(8) Category H. Proposals for bone marrow transplantation services, bum intensive care services, neonatal intensive care 
services, open heart surgery services, solid organ transplantation services, air ambulance equipment, cardiac angioplasty 
equipment, cardiac catheterization equipment, heart-lung bypass machines, gamma knives, lithotriptors. magnetic 
resonance imaging scanners, positron emission tomography scanners, major medical equipment as defined in G.S. 13 lE- 
176(14f). diagnostic centers as defined in G.S. 131E-176(7a). and oncology treatment centers as defined in G.S. 13 lE- 
176(18a). 

(9) Category L Proposals involving cost overruns: expansions of existing continuing care facilities which are licensed by 
the Department of Insurance at the date the application is filed and are applying under exemptions from need 
determinations in 10 NCAC 3R .3072: relocations within the same county of existing health service facilities, beds or 
dialysis stations which do not involve an increase in the number of health service facility beds or stations: reallocation 
of beds or services: Category A proposals submitted by Academic Medical Center Teaching Hospitals designated prior 
to January L. 1990: proposals submitted pursuant to 10 NCAC 3R .3080(c) by Academic Medical Center Teaching 
Hospitals designated prior to January 1^ 1990: and any other proposal not included in Categories A through H. 



Authority G.S. 131 £-176(25); 13IE-177(1); 1 31 E- 183(b). 



.3053 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following review schedules for certificate of need applications. 
(I) Nursing Care Beds (in accordance with need determinations in 10 NCAC 3R .3072) 





CON Beginning 


County 


Review Date 


Alexander 


April 1. 1997 


Burke 


February 1. 1997 


Cherokee 


October 1. 1997 


Cleveland 


April 1, 1997 


Haywood 


April 1. 1997 


Jackson 


October 1, 1997 



,12:4 



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August 15, 1997 



247 



PROPOSED RULES 





CON Beginning 


County 


Review Date 


Macon 


October 1. 1997 


Transvlvania 


April 1. 1997 


Yancev 


February 1. 1997 


Davidson 


October 1. 1997 


Surry 


August 1 ■ 1997 


Yadkin 


August 1. 1997 


Iredell 


April 1, 1997 


Lincoln 


April 1. 1997 


Union 


August 1. 1997 


Granville 


May 1, 1997 


Johnston 


March 1. 1997 


Lee 


May 1. 1997 


Wake 


December 1. 1997 


Brunswick 


September 1, 1997 


Harnett 


March 1. 1997 


Hoke 


March 1. 1997 


Moore 


May 1. 1997 


New Hanover 


September 1. 1997 


Currituck 


December 1, 1997 


Greene 


September 1. 1997 


Lenoir 


May 1. 1997 


Nash 


September 1. 1997 



(2) Home Health Agency Offices (in accordance with need determinations in 10 NCAC 3R .3074) 





CON Beginning 


HSA 


Review Date 


I 


December 1. 1997 


11 


April 1. 1997 


Ul 


June I. 1997 


lY 


November 1. 1997 


V 


March 1. 1997 



248 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



PROPOSED RULES 



HSA 


CON Beginning 
Review Date 


YJ 


Julv 1. 1997 



(3) Detox-Only Beds (in accordance with need determinations in 10 NCAC 3R .3078) 



Mental Health Planning Areas 



1 (Cherokee. Clay. Graham. Haywood. Jackson. Macon. Swain) 

4 (Henderson. Transylvania) 

5 (Alexander. Burke. Caldwell. McDowell) 

6 (Rutherford. Polk) 
8 (Gaston. Lincoln) 



(Rockingham) 

17 (Alamance. Caswell) 

18 (Orange. Person. Chatham) 
20 (Vance. Granville. Franklin. Warren) 
lA (Davidson) 

23 (Bladen. Columbus. Robeson. Scotland) 
26 (Johnston) 

(Wake) 



ii 

13 

15 

17 

1 

20 

li 

21 

26 

22 

31 

32 

33 

34 

35 

36 

38 

39 

40 

41 



(Davie. Iredell. Rowan) 



(Surry. Yadkin) 



(Wayne) 



(Wilson. Greene) 
(Edgecombe. Nash) 

34 (Halifax) 

35 (Carteret. Craven. Jones. Pamlico) 
(Lenoir) 



(Benie. Gates. Hertford. Northampton) 
(Beaufort. Hyde. Martin. Tyrrell. Washington) 



(Camden. Chowan. Currituck. Dare. Pasquotank. Perquimans) 



CON Beginning 
Review Date 



April 1. 1997 
April 1. 1997 



April 
April 



1997 
1997 



April 
April 



1997 
1997 



June L 1997 



June L 1997 



June L 
June L 



1997 



1997 



June L, 
May 1. 



1997 



1997 



May 1. 1997 
May 1. 1997 



May 1. 1997 



May 1. 1997 



May L. 
May 



1997 



1997 



May 1. 1997 



Mav L 1997 



May 1. 1997 



May 



1997 



(Duplin. Sampson) 



May 1 
May j^ 
May 1. 



1997 



1997 
1997 



12:4 



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August 15, 1997 



249 



PROPOSED RULES 



(4) Intermediate Care Facility Beds for Mentally Retarded (in accordance with need determinations in 10 NCAC 3R .3079) 



Mental Health Planning Areas 



CON Beginning 
Review Date 



3 (Alleghany. Ashe. Avery. Watauga. Wilkes) 

M (Forsyth. Stokes) 

21 (Davidson) 

16 (Guilford) 

18 (Orange. Person. Chatham) 

24 (Cumberland) 

30 (Onslow) 

37 (Pitt) 



December 1. 1997 
December 1. 1997 
June 1. 1997 
June 1. 1997 
November 1. 1997 
May 1. 1997 
May 1. 1997 
May 1. 1997 



(5) Applications for certificates of need will be reviewed pursuant to the following review schedule, unless another schedule 
has been specified in Items (1) through (4) of this Rule. 



CON Beginning 


HSA 


HSA 


Review Date 


LiLin 


IV^V^VI 


January 1 


— 


;; 


February 1 


A.B.G.I 


G 


March 1 


^ 


A^B^F^I 


April 1 


B.JL1LI 


— 


May 1 


— 


B.C.1LI 


June 1 


A^C^D^Li 


D 


July 1 


— 


A^LI 


August 1 


B.E.I 


— 


September 1 


— 


B.E.LH 


October 1 


A.B.LH 


— 


November 1 


— 


A.C.L.LH 


December 1 


CD^F^iLI 


B^D^iLI 



Authority G.S. 1 31 E-1 76(25); 131E-177{1); 131E-183(b). 

.3054 MULTI-COUNTY GROUPINGS 

(a) Health Service Areas. The agency has assigned the counties of the state to the following health service areas for the purpose 
of scheduling applications for certificates of need: 

HEALTH SERVICE AREAS (HSA) 



250 



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August 15, 1997 



12:4 



PROPOSED RULES 



I 


n 


HI 


lY 


V 


YI 


County 


County 


County 


County 


County 


County 


Alexander 


Alamance 


Cabarrus 


Chatham 


Anson 


Beaufort 


Allephanv 


Caswell 


Gaston 


Durham 


Bladen 


Bertie 


Ashe 


Dayidson 


Iredell 


Franklin 


Brunswick 


Camden 


Averv 


Dayie 


Lincoln 


Granyille 


Columbus 


Carteret 


Buncombe 


Forsyth 


Mecklenburg 


Johnston 


Cumberland 


Chowan 


Burke 


Guilford 


Rowan 


Lee 


Harnett 


Cray en 


Caldwell 


Randolph 


Stanly 


Orange 


Hoke 


Currituck 


Catawba 


Rockingham 


Union 


Person 


Montgomery 


Dare 


Cherokee 


Stokes 




Vance 


Moore 


Duplin 


Clay 


Surry 




Wake 


New Hanoyer 


Edgecombe 


Cleveland 


Yadkin 




Warren 


Pender 


Gates 


Graham 








Richmond 


Greene 


Havwood 








Robeson 
Sampson 


Halifax 
Hertford 


Henderson 


Jackson 








Scotland 


Hyde 


McDowell 










Jones 


Macon 










Lenoir 


Madison 










Martin 


Mitchell 










Nash 


Polk 










Northampton 


Rutherford 










Onslow 
Pamlico 


Swain 


Transvlvania 










Pasquotank 
Perquimans 


Watauga 


Wilkes 










Pitt 


Yancev 










Tyrrell 
Washineton 














Wayne 












Wilson 



(b) Mental Health Planning Areas. The agency has assigned the counties of the state to the following Mental Health Planning 
Areas for purposes of the State Medical Facilities Plan: 



NORTH CAROLINA REGISTER 



August 15, 1997 



251 



PROPOSED RULES 



MENTAL HEALTH PLANNING AREAS 









Area Number 


Constituent Counties 




i 
2 


Cherokee. Clav. Graham. Havwood. Jackson. Macon. 


Swain 


Buncombe. Madison. Mitchell. Yancev 




3 


Alleghanv. Ashe. Averv. Watauga. Wilkes 




4 


Henderson. Transvlvania 




5 


Alexander. Burke. Caldwell. McDowell 




6 


Rutherford. Polk 




7 


Cleveland 




8 


Gaston. Lincoln 




9 


Catawba 




iO 


Mecklenburg 




11 


Davie. Iredell. Rowan 




n 


Cabarrus. Stanlv. Union 




13 


Surrv. Yadkin 




H 


Forsvth. Stokes 




15 


Rockingham 




16 


Guilford 




n 


Alamance, Caswell 




18 


Orange. Person. Chatham 




19 


Durham 




20 


Vance. Granville. Franklin. Warren 




21 


Davidson 




22 


Anson. Hoke. Montgomerv. Moore. Richmond 




23 


Bladen. Columbus. Robeson. Scotland 




24 


Cumberland 




25 


Lee. Harnett 




26 


Johnston 




27 


Wake 




28 


Randolph 




29 


Brunswick. New Hanover. Pender 




30 


Onslow 





252 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



PROPOSED RULES 



Area Number 


Constituent Counties 


31 


Wavne 


32 


Wilson, Greene 


33 


Edgecombe, Nash 


34 


Halifax 


35 


Carteret. Craven. Jones, Pamlico 


36 


Lenoir 


37 


Pitt 


38 


Bertie. Gates, Hertford, Northampton 


39 


Beaufort, Hvde, Martin, Tvrrell. Washington 


40 

4i 


Camden, Chowan, Currituck, Dare. Pasquotank. Perquimans 


Duplin, Sampson || 



(c) Mental Health Planning Regions, The agency has assigned the counties of the state to the following Mental Health Planning 
Regions for purposes of the State Medical Facilities Plan: 

MENTAL HEALTH PLANNING REGIONS (Area Number and Constituent Counties) 



Western ( W) 



1 Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain 

2 Buncombe, Madison, Mitchell, Yancey 

3 Alleghany, Ashe, Averv, Watauga, Wilkes 

4 Henderson, Transylvania 

5 Alexander, Burke, Caldwell. McDowell 

6 Rutherford, Polk 

7 Cleveland 

8 Gaston, Lincoln 

9 Catawba 

10 Mecklenburg 

11 Davie, Iredell, Rowan 

12 Cabarrus, Stanly, Union 



North Central (NO 



13 Surry, Yadkin 

14 Forsyth, Stokes 

15 Rockingham 



12:4 



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253 



PROPOSED RULES 



16 


Guilford 


u. 


Alamance. Caswell 


18 


Orange. Person. Chatham 


19 


Durham 


20 


Vance. Granville. Franklin. Warren 


South Central (SO 


21 


Davidson 


22 
23 


Anson. Hoke. Montgomery. Moore, Richmond 


Bladen, Columbus, Robeson, Scotland 


24 


Cumberland 


25 


Lee. Harnett 


26 


Johnston 


27 


Wake 


28 


Randolph 


Eastern (E) 


29 


Brunswick. New Hanover. Pender 


30 


Onslow 


31 


Wavne 


32 


Wilson. Greene 


33 


Edgecombe. Nash 


34 


Halifax 


35 


Carteret. Craven. Jones. Pamlico 


36 


Lenoir 


37 


Pitt 


38 


Benie. Gates. Henford. Nonhampton 


39 


Beaufort. Hvde. Martin. Tvrrell. Washington 


40 


Camden. Chowan. Currituck. Dare. Pasquotank. Perquimans 


41 


Duplin. Sampson 



Authority G.S. 13] £-176(25): 131E-177(I); 131E-183(1). 

.3055 REALLOCATIONS AND ADJUSTMEIVTS 

(a} REALLOCATIONS. 
LU Reallocations shall be made only to the extent that the methodologies used in the State Medical Facilities Plan to make 
need determinations indicate that need exists after the mventories are revised and the need determinations are recalculated. 
£2j Beds or services which are reallocated once in accordance with this Rule shall not be reallocated again. Rather, the 



254 



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August 15, 1997 



12:4 



PROPOSED RULES 



Medical Facilities Planning Section shall make any necessary changes in the next annual State Medical Facilities Plan. 

(3) Dialysis stations that are withdrawn, relinquished, not applied for or decertified shall not be reallocated. Instead, any 
necessary redetermination of need shall be made in the next scheduled publication of the Semiannual Dialysis Report. 

(4) A ppeals of Certificate of Need Decisions on Applications. Need determinations of beds or services for which the CON 
Section decision has been appealed shall not be reallocated until the appeal is resolved. 

(A) Appeals Resolved Prior to August 17: If an appeal is resolved in the calendar year prior to August 17. the beds 
or services shall not be reallocated by the CON Section; rather the Medical Facilities Planning Section shall make 
the necessary changes in the next annual State Medical Facilities Plan. 

(B) Appeals Resolved on or After August 17: If the appeal is resolved on or after August 17 in the calendar year, the 
beds or services, except for dialysis stations, shall be made available for a review period to be determined by the 
CON Section, but beginning no earlier than 60 days from the date that the appeal is resolved. Notice shall be 
mailed by the Certificate of Need Section to all persons on the mailing list for the State Medical Facilities Plan. 
no less than 45 days prior to the due date for receipt of new applications. 

(5) Withdrawals and Relinquishments. Except for dialysis stations, a need determination for which a certificate of need is 
issued, but is subsequently withdrawn or relinquished, is available for a review period to be determined by the Certificate 
of Need Section, but beginning no earlier than 60 days from: 

(A) the last date on which an appeal of the n otice of intent to withdraw the certificate could be filed if no appeal is 
filed. 

(B) the date on which an appeal of the withdrawal is finally resolved against the holder, or 

(C) the date that the Certificate of Need Section receives from the holder of the certificate of need notice that the 
certificate has been voluntarily relinquished. 

Notice of the scheduled review period for the reallocated services or beds shall be mailed by the Certificate of Need 
Section to all persons on the mailing list for the State Medical Facilities Plan, no less than 45 days prior to the due date 
for submittal of the new applications. 
(6") Need Determinations for which No Applications are Received: 

(A) Services or Beds with Scheduled Review in the Calendar Year on or Before September 1 : The Certificate of Need 
Section shall not reallocate the services or beds in this category for which no applications were received, because 
the Medical Facilities Planning Section will have sufficient time to make any necessary changes in the 
determinations of need for these services or beds in the next annual State Medical Facilities Plan. 

(B) Services or Beds with Scheduled Review in the Calendar Year After September 1 : A need determination in this 
category for which no application has been received by the last due date for submittal of applications shall be 
available to be applied for in the second Category 1 review period in the next calendar year for the applicable HSA. 
Notice of the scheduled review period for the reallocated beds or services shall be mailed by the Certificate of 
Need Section to aU persons on the mailing list for the State Medical Facilities Plan, no less than 45 days prior to 
the due date for submittal of new applications. 

(7) Need Determinations not Awarded because Application Disapproved. 

(A) Disapproval in the Calendar Year prior to August 17: Need determinations or portions of such need 
determinations for which applications were submitted but disapproved by the Certificate of Need Section before 
August 17. shall not be reallocated by the Certificate of Need Section. Instead the Medical Facilities Planning 
Section shall make the necessary changes in the next annual State Medical Facilities Plan, if no appeal is filed. 

(B) Disapproval in the Calendar Year on or After August 17: Need determinations or portions of such need 
determinations for which applications were submitted but dJgnpproN'ed by the Certificate of Need Section on or 
after August 17. shall be reallocated by the Certificate of Need Section, except for dialysis stations. A need in 
this category shall be available for a review period to be determined by the Certificate of Need Section but 
beginning no earlier than 95 days from the date the application was disapproved, if no appeal is filed. Notice of 
the scheduled review period for the reallocation shall be mailed by the Certificate of Need Section to aU persons 
on the mailing list for the State Medical Facilities Plan, no less than 80 days prior to the due date for submittal 
of the new applications. 

(8) Reallocation of Decertified ICF/MR Beds. If an ICF/MR facility's Medicaid certification is relinquished or revoked, 
the ICF/MR beds in the facility shall be reallocated by the Department of Human Resources. Division of Facility 
Services. Medical Facilities Planning Section pursuant to the provisions of the following Sub-parts. The reallocated beds 
shall only be used to convert five-bed ICF/MR facilities into six-bed facilities. 

(A) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are located 
equals or exceeds the number of reallocated beds, the beds shall be reallocated solely within the planning region 
after considering the recommendation of the Regional Team of Developmental Disabilities Services Directors. 

(B) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are located is 
less than the number of reallocated beds, the Medical Facilities Planning Section shall reallocate the excess beds 



12:4 NORTH CAROLINA REGISTER August 15, 1997 255 



PROPOSED RULES 



10 oiher planning regions after considering the recommendaiion of ihe Developmental Disabilities Section in the 



Division of Mental Health. Developmental Disabilities, and Substance Abuse Services. The Medical Facilities 



Planning Section shall then allocate the beds among the planning areas within those planning regions after 



considerin g the recommendation of the appropriate Regional Teams of Developmental Disabilities Services 
Directors. 

(O The Department of Human Resources. Division of Facility Services. Cenificaie of Need Section shall schedule 

reviews of applications for these beds pursuant to Subparagraph (a)(5) of this Rule. 

£b} CHANGES IN NEED DETERMINATIONS. 

(1) The need determinations in 10 NCAC 3R .3057 through .3079 shall be revised continuously throughout the calendar year 



to reflect all changes in the inventories of: 

(A) the health services listed at G.S. 131E-176(16)f: 

(B) health service facilities: 

(C) health service facility beds: 

(D) dialysis stations: 

(E) the equipment listed at G.S. 131E-176(16lfl: and 

(F) mobile medical equipment: 

as those changes are reponed to the Medical Facilities Planning Section. However, need determinations in 10 NCAC 



3R .3057 through .3079 shall not be reduced if the relevant inventory is adjusted upward 30 days or less prior to the first 
day of the applicable review period. 
£2j Inventories shall be updated to reflect: 

(A) decertification of home health agencies or offices, intermediate care facilities for the mentally retarded, and dialvsis 
stations: 

(B) delicensure of health service facilities and health service facility beds: 

(C) demolition, destruction, or decommissioning of equipment as listed at G.S. 131E-176(16)fl and s: 

(D) elimination or reduction of a health service as listed at G.S. 131E-176( 16)f: 

(E) psychiatric beds licensed pursuant to G.S. 13 lE-1 84(c): 

(F) certificates of need awarded, relinquished, or withdrawn, subsequent to the preparation of the inventories in the 
State Medical Facilities Plan: and 

(G) corrections of errors in the inventory as reported to the Medical Facilities Planning Section. 

(3) Any person who is interested in applying for a new institutional health service for which a need determination is made 
in 10 NCAC 3R .3056 through .3079 may obtain information about updated inventories and need determinations from 
the Medical Facilities Planning Section. 

(4) Need determinations resulting from changes in inventory shall be available for a review period to be determined by the 
Certificate of Need Section, but beginning no earlier than 60 days from the date of the action identified in Paragraph (b) 
of this Rule. Notice of the scheduled review period for the need determination shall be mailed by the Certificate of Need 



Section to all persons on the mailing list for the State Medical Facilities Plan, no less than 45 days prior to the due date 
for submittal of the new applications. 

Authority G.S. 131E-176(25); 131E-177(1): 131E-183(b). 

.3056 DIALYSIS STATION NEED DETERMINATION 

(a) The Medical Facilities Planning Section (MFPS) shall determine need for new dialysis stations two times each calendar year. 



and shall make a report of such determinations available to all who request iL This report shall be called the Nonh Carolina 
Semiarmual Dialysis Report (SDRl. Data to be used for such determinations, and their sources, are as follows: 

( 1) Numbers of dialysis patients, by type, county and facility', from the Southeastern Kidney Council. Inc. (SEKC) and the 
Mid-Atlantic Renal Coalition. Inc. as of December 31. 1996 for the March SDR and as of June 30. 1997 for the 
September SDR. 

(2) Cenificate of need decisions, decisions appealed, appeals settled, and awards, from the Certificate of Need Section. DFS. 
£31 Facilities certified for participation in Medicare, from the Certification Section. DFS. 

(4) Need determinations for which cenificate of need decisions have not been made, from MFPS records. 
Need determinations in this repon shall be an integral p art of the State Medical Facilities Plan, as provided in G.S. 131E-183. 
(b) Need for new dialvsis stations shall be determined as follows: 
(1) County Need 

(A) The average annual rate (%) of change in total number of dialvsis patients resident in each county from the end 
of 1992 to the end of 1996 is multiplied by the county's 1996 year end total number of patients in the SDR, and 
the product is added to each county's most recent total number of patients reported in the SDR. The sum is the 
county's projected total 1997 patients. 



256 NORTH CAROLINA REGISTER August 15, 1997 12:4 



PROPOSED RULES 



(B) The percent of each county's total patients who were home dialysis patients at the end of 1996 is multiplied by the 
county's projected total 1997 patients, and the product is subtracted from the county's projected total 1997 
patients. The remainder is the county's projected 1997 in-center dialysis patients. 

(C) The projected number of each county's 1997 in-center patients is diyided by 3.2. The quotient is the projection 
of the county's 1997 in-center dialysis stations. 

(D) From each county's projected number of 1997 in-center stations is subtracted the county's number of stations 
certified for Medicare. CON-approved and awaiting certification, awaiting resolution of CON a ppeals, and the 
number represented by need determinations in previous State Medical Facilities Plans or Semiannual Dialysis 
Reports for which CON decisions have not been made. The remainder is the county's 1997 projected surplus or 
deficit. 

(E) If a county's 1997 projected station deficit is 10 or greater and the SDR shows that utilization of each dialysis 
facility in the county is 80% or greater, the 1997 county station need determination is the same as the 1997 
projected station deficit. If a county's 1997 projected station deficit is less than 10 or if tlie utilization of any 
dialysis facility in the county is less than 80%. the county's 1997 station need determination is zero. 

(2) Facility Need. A dialysis facility located in a county for which the result of the County Need methodology is zero in 
the reference Semiannual Dialysis Report (SDR) is determined to need additional stations to the extent that: 
(A) Its utilization, reported in the current SDR, is 3.2 patients per station or greater. 
£B} Such need, calculated as follows, is reported in an application for a certificate of need: 

(i} The facility's number of in-center dialysis patients reported in the previous SDR (SDR ,) is subtracted from 

the number of in-center dialysis patients reported in the current SDR (SDR ,). The difference is multiplied 

by 2 to project the net in-center change for one year. Divide the projected net in-center change for the year 

by the number of in-center patients from SDR, to determine the projected annual growth rate. 

("ii) The quotient from Subpart (b)(2)(B)(i) of this Rule is divided by 12. 

(iii) The quotient from Subpart (b)(2)(B)(ii) of this Rule is multiplied by the number of months from the most 

recent month reported in the current SDR until the end of calendar 1997. 
(iv) The product from Subpart (b)(2)(B)(iii) of this Rule is multiplied by the number of the facility's in-center 
patients reported in the current SDR and that product is added to such reported number of in-center patients. 
(v) The sum from Subpart (b)(2)(B)(iv) of this Rule is divided by 3.2. and from the quotient is subtracted the 
facility's current number of certified and pending stations as recorded in the current SDR. The remainder 
is the number of stations needed. 
(C) The facility may apply to expand to meet the need established in Subpart (b)(2)(B)(v) of this Rule, up to a 
maximum of 10 stations. 
£c] The schedule for publication of the North Carolina Semiaimual Dialysis Report (SDR) and for receipt of certificate of need 
applications based on each issue of this report in 1997 shall be as follows: 



Data for 


Receipt of 


Publication 


Receipt of 


Beginning 


Period Ending 


SEKC Repon 


of SDR 


CON Applications 


Review Dates 


Dec. 31. 1996 


Feb. 28. 1997 


March 20. 1997 


May 16. 1997 


June 1. 1997 


June 30, 1997 


Au?. 29. 1997 


Sept. 19. 1997 


Nov. 14. 1997 


Dec. 1. 1997 



(d) An application for a certificate of need pursuant to tins Rule shall be accepted only if it demonstrates a need by utilizing one 
of the methods of determining need outlined in this Rule. 

£e) An application for a new End Stage Renal Disease facility shall not be approved unless it documents the need for at least 10 
stations based on utilization of 3.2 patients per station per week. 

(fi Home patients will not be included in determination of need for new stations. 

Authority G.S. ]3!E-]76(25); 131E-177(1}; 131E-183(b). 

.3057 ACUTE CARE BED NEED DETERME^ATION (REVIEW CATEGORY A) 

It is determined that there is no need for additional acute care beds. 

Authority G.S. 131 £-176(25): 131 E-1 77(1); 131E-183(b). 

.3058 REHABILITATION BED NEED DETERMINATION (REVIEW CATEGORY E) 

12:4 NORTH CAROLINA REGISTER August 15, 1997 257 



PROPOSED RULES 



It is determined that there is no need for additional rehabilitation beds. 
Authority G.S. 131E-] 76(25); 131E-177(1): 131E-183(b). 

.3059 AMBULATORY SURGICAL FACILITIES NEED DETERMINATION (REVIEW CATEGORY E) 

It is determined that there is no need for additional ambulatory surgical facilities, except that a Rural Primary Care Hospital 



designated by the N.C. Office of Rural Health Services pursuant to Section 1820(f) of the Social Security Act may apply for a 
certificate of need to convert existing operating rooms for use as a freestanding ambulatory surgical facility. 

Authority G.S. 131E-176(25): 131E-I77(l): 131E-183(b). 

.3060 OPEN HEART SURGERY SERVICES NEED DETERMINATIONS (REVIEW CATEGORY H) 

It is determined that there is a need for additional open heart surgery services from any hospital which acquired a heart-lung 
bypass machine prior to March 18. 1993 and which, nevertheless, is unable to use such machine in the provision of open heart 
surgery services because the hospital does not have a certificate of need authorizing k to provide open heart surgery services. It 
is further determined that the citizens served by^ and residing in the general service areas of. such hospitals have a need for such 
additional open heart surgery services. These needs exist despite the capacity to provide open heart surgery services of any other 
hospital or hospitals in tiie State. For the reasons set out in the 1997 State Medical Facilities Plan, there is no other need for 
additional open heart surgery services. 

Authority G.S. ] 31 £-176(25); 131E-177(1); 131E-1 83(b). 

.3061 HEART-LUNG BYPASS MACHINES NEED DETERMINATION FOR NEW OPEN HEART 
SURGERY SERVICES (REVIEW CATEGORY H) 

It is determined that there is no need for ttie acquisition of heart-lung bypass machines by anyone. 

Authority G.S. 1 31 E-1 76(25); 131E-177(1); 1 31 E-1 83(b). 

.3062 HEART-LUNG BYPASS MACHINES NEED DETERMINATION FOR EXISTE^JG OPEN HEART 
SURGERY SERVICES (REVIEW CATEGORY H) 

It is determined that there is no need for the acquisition of heart-lung bypass machines by anyone. 

Authority G.S. 131E-1 76(25); 131E-177(1); 131E-183(b). 

.3063 CARDIAC CATHETERIZATION EQUIPMENT NEED DETERMINATION FOR NEW 
PROVIDERS (REVIEW CATEGORY H) 

It is determined that there is no need for the acquisition of cardiac catheterization equipment by anyone. 

Authority G.S. 131 E-1 76(25); 131 E-1 77(1); 131 E-1 83(b). 

.3064 CARDIAC CATHETERIZATION EQUIPMENT NEED DETERMINATION FOR EXISTING 
PROVIDERS (REVIEW CATEGORY H) 

It is determined that there is no need for the acquisition of cardiac catheterization equipment by anyone. 

Authority G.S. 131 E-1 76(25); 131E-177(1); 131E-1 83(b). 

.3065 CARDIAC ANGIOPLASTY EQUIPMENT NEED DETERMINATION FOR NEW PROVIDERS 
(REVIEW CATEGORY H) 

It is determined that there is no need for the acquisition of cardiac angioplasty equipment by anyone. 

Authority G.S. 131E-176(25); 131E-177(1); 131E-I83(b). 

.3066 CARDIAC ANGIOPLASTY EQUIPMENT NEED DETERMINATION FOR EXISTING PROVIDERS 
(REVIEW CATEGORY H) 

It is determined that there is no need for the acquisition of cardiac angioplasty equipment by an\one. 

Authority G.S. 131 E-1 76(25); 131E-177(1); 131E-183(b). 



258 NORTH CAROLINA REGISTER August 15, 1997 12:4 



PROPOSED RULES 



.3067 BURN INTENSIVE CARE SERVICES NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for additional bum intensive care services. 

Authority G.S. 131E-1 76(25); 131E-177(1); 1 31 E- 183(b). 

.3068 POSITRON EMISSION TOMOGRAPHY SCANNERS NEED DETERMINATION (REVIEW 
CATEGORY H) 

It is determined that there is no need for additional positron emission tomography scanners for purposes other than research. 



Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3069 BONE MARROW TRANSPLANTATION SERVICES NEED DETERMINATION (REVIEW 
CATEGORY H) 

It is determined that allogeneic bone marrow transplantation services shall be developed and offered only by academic medical 
center teaching hospitals as designated in 10 NCAC 3R .3080(c). h is also determined that there is no need for additional 
allogeneic or autologous bone marrow transplantation services. 

Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3070 SOLID ORGAN TRANSPLANTATION SERVICES NEED DETERMINATION (REVIEW 
CATEGORY H) 

Solid Organ Transplantation Services shall be developed and offered only by academic medical center teaching hospitals as 
designated in iO NCAC 3R .3080(c). It is determined that there is no need for new solid organ transplant services. 

Authority G.S. 131 £-176(25); 131E-177(1); 131E-183(b). 

.3071 GAMMA KNIFE NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for a gamma knife. 

Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3072 NURSING CARE BED NEED DETERMINATION (REVIEW CATEGORY B) 

It is determined that the cotinties listed in this Rule need additional Long-Term Nursmg Facility Beds as specified. There is no 
need for additional Long-Term Nursing Facility Beds in other counties, except as otherwise provided in 10 NCAC 3R .3073. 





Number of Nursing 


County 


Beds Needed 


Alexander 


40 


Burke 


90 


Cherokee 


30 


Cleveland 


60 


Havwood 


50 


Jackson 


40 


Macon 


50 


Transylvania 


30 


Yancey 


20 


Davidson 


100 



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August 15, 1997 



259 



PROPOSED RULES 





Number of Nursing 


Countv 


Beds Needed 


Sum,' 


70 


Yadkin 


40 


Iredell 


90 


Lincoln 


30 


Union 


90 


Granville 


20 


Johnston 


100 


Lee 


30 


Wake 


170 


Brunswick 


30 


Cumberland 


Q 


Harnett 


50 


Hoke 


40 


Moore 


90 


New Hanover 


110 


Currituck 


20 


Greene 


30 


Lenoir 


40 


Nash 


60 



Authorin G.S. 1 31 E-] 76(25); 131E-177(1): 131E-183(b). 



.3073 DEMONSTRATION PROJECT ON PEDLATRIC NTJRSING CARE NEED DETERMINATION 
(REVIEW CATEGORY G) 

laj It is deiermined that nine nursing facility beds are needed to demonstrate the efficacy of short-term (less than 30 days) care 
of medically fragile infants and children. This demonstration project shall provide services to support medically fragile children 
who are primarily cared for at home and shall provide data to assist in determining if these children can be successfully cared for 
at home over the long-term with intermittent inpatient nursing facility admission. Because of improved medical procedures and 
care, more infants with complex medical needs are sur\iving and are being discharged from hospitals. The medical equipment and 
care needed by these children in the home is quite sophisticated. Pediatric patients suffering from acquired brain injury or from 
major trauma with significant orthopaedic problems ma\' also require continued services, which include intermittent inpatient 
nursing care ser\ices. after discharge from rehabilitation hospitals. The proposed project shall be designed to ease the transition 
from the hospital environment to care at home for these patient groups, it shall also offer respite care and other services to low 
birth-weight children, to children with serious chronic conditions, and to children with rehabilitation needs. 

(b) An applicant for the project shall demonstrate that home health services shall be provided through a home health agency. 



Funhermore. an applicant shall demonstrate coordination with other health sen,ices. including a hospice provider, an acute care 
provider, and an mpatient rehabilitation pro\ider. Project o\'ersight shall include at least one Pediatrician who is willin g to serve 
as medical ad\isor and willing U) assist in e\aluation of tlie demonstration project's effectiveness. The goal of tlie ser\'ices provided 
shall be for long-term maintenance of tlie pediatric patient at home, 
(c) The demonstration project shall provide data to evaluate the effectiveness of this type of program in at least these ways: 



260 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



PROPOSED RULES 



(1) Enhanced parent confidence/willingness to care for the child at home: 

(2) Reduced length of stay for hospitalization episodes: 

(3) Reduced hospitalizations/rehospitalizations: 

(4) Reduced incidence of institutionalization of children to long-term care facilities: 

(5) Outcomes of care - especially relative to rehabilitation, chronic disease care: 

(6) Cost data -- cost efficiencies, expense, reimbursement issues. 

(d) The demonstration project shall provide data to evaluate if additional programs in North Carolina would benefit the medically 
fra g ile pediatric population. Data shall be provided to the NC State Health Coordinating Council at least annually, beginning in 
the second year of the proiect's operation. Annual data reporting is to continue, until directed otherwise by the State Health 
Coordinating Council, or until the demonstrated activity becomes incorporated as a regular p art of the State Medical Facilities Plan. 



Geographic Area 



Number of Nursing 

Beds Needed for the Pediatric 

Demonstration Project 



Statewide 



Authority G.S. 131E-176(25); 131E-177(1); 131E-I83(b). 

.3074 HOME HEALTH AGENCY OFFICE NEED DETERMINATION (REVIEW CATEGORY F) 

(a) It is determined that the Health Service Areas identified in 10 NCAC 3R .3054(a) and listed in this Rule may have a need 
for additional home health agency offices that is not revealed by the standard methodology as specified. 

(b) A pplications for certificates of need for home health agency offices filed pursuant to these adjusted need determinations shall 
demonstrate: 

(1) that the applicant proposes to address the needs of at least one of the following special needs groups: 

(A) racial minorities. 

(B) nursing home patients in transition to the community. 

(C) HIV/AIDS patients. 

(D) Alzheimer's Disease/senile dementia patients, or 

(E) underserved patients in rural counties: and 

(2) that the applicant proposes to serve, during its first operating year, at least 50 patients who are members of the special 
groups identified in Subparagraph (1). of this Rule: and 

(3) that either: 

(A) home health agencies currently serving the geographic area are not meeting the needs of the groups the applicant 
proposes to serve: or 

(B) the proposed home health agency office will offer new or innovative services not currently being offered by home 
health agencies that serve the geographic area the applicant proposes to serve. 



HSA 


Number 


of Aeencies 


or Offices Needed 


I 




i 


II 




1 


lU 




1 


lY 




1 


V 




1 


VI 




1 



Authority G.S. 131E-176(25); I31E-177(1); 131E-183(b). 

.3075 HOSPICE NEED DETERMINATION (REVIEW CATEGORY F) 



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August 15, 1997 



261 



PROPOSED RULES 



It is determined that there is no need for additional Hospices. 
Authority G.S. 131 £-176(25); 131 £-177(1); 1 31 £-1 83(b). 

.3076 HOSPICE INPATIENT FACILITY BED NEED DETERMINATION (REVIEW CATEGORY F) 

(a) Single Counties. Single counties with a projected deficit of six or more beds are allocated beds based on the projected deficit 
It IS determined that there is no need for additional single county hospice inpatient facility beds. 

(b) Contiguous Counties. It is determined that any combination of two or more contiguous counties taken from the following 
list shall have a need for new hospice inpatient facility beds if the combined bed deficit for the grouping of contiguous counties 
totals si.x or more beds. Each county m a grouping of contiguous counties must have a deficit of at least one and no more than five 
beds. The need for the grouping of contiguous counties shall be the sum of the deficits in tlie individual counties. For purposes 
ot" tliis Rule, "contiguous counties" shall mean a grouping of North Carolina counties which includes the county in which the new 
hospice inpatient facility is proposed to be located and any one or more of the North Carolina counties which have a common border 
with that county, even if the borders only touch at one point. No county may be included in a grouping of contiguous counties 
unless It is listed in tlie following table: 



County 


Hospice Inpatient 




Bed Deficit 


Alexander 


i 


Ashe 


1 


Haywood 


1 


Polk 


1 


Rutherford 


3 


Transylvania 


1 


Watauga 


1 


Wilkes 


1 


Yancey 


1 


Alamance 


4 


Davidson 


2 


Rockingham 


2 


Stokes 


2 


Surry 


2 


Cabarrus 


2 


Gaston 


3 


Iredell 


1 


Lincoln 


1 


Rowan 


i 

1 
i 


Stanly 


Union 





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County 


Hospice Inpatient 




Bed Deficit 


Chatham 


1 


Durham 


4 


Johnston 


1 


Lee 


1 


Wake 


4 


Vance 


1 


Bladen 


1 


Bnanswick 


1 


Columbus 


3 


Cumberland 


1 


Harnett 


i 


Moore 


2 


Pender 


1 


Richmond 


2 


Robeson 


1 


Scotland 


1 


Bertie 


i 


Craven 


1 


Duplin 


1 


Edgecombe 


1 


Hertford 


1 


Nash 


i 


Northampton 


i 


Onslow 


1 


Pitt 


1 


Wilson 


1 



Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3077 PSYCHIATRIC BED NEED DETERMINATION (REVIEW CATEGORY C) 

It is determined that there is no need for additional psychiatric beds. 

Authority G.S. 13] £-176(25); 131E-177(1); 1 31 E-1 83(b). 



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263 



PROPOSED RULES 



.3078 CHEMICAL DEPE^fDENCY TREATMENT BED >fEED DETERMINATION (REVIEW CATEGORY C) 

(a) It is determined that there is no need for any additional chemical dependency treatment beds other than detox-only beds for 
adults. The following table lists the mental health planning areas that need detox-only beds for adults and identifies the number 
of such beds needed in each planning area. There is no need for additional detox-only beds for adults in any other mental health 
planning areas. No other reviews for chemical dependency treatment beds are scheduled. 



Mental Health Planning Areas 


Mental Health 


Number of Detox-Onlv 


(Constituent Counties) 


Planning Regions 


Beds Needed 


1 (Jackson. Haywood. Macon. Cherokee, Clay. Graham. Swam) 


W 


IQ 


4 (Transylvania. Henderson) 


w 


m 


5 (Caldwell. Burke. Alexander. McDowell) 


W 


10 


6 (Rutherford. Polk) 


w 


10 


8 (Gaston. Lincoln) 


W 


IQ 


1 1 (Rowan. Iredell. Davie) 


w 


IQ 


13 (Surry, Yadkin) 


NC 


2 


15 (Rockingham) 


NC 


10 


17 (Alamance. Caswell) 


NC 


6 


18 (Orange, Person. Chatham) 


NC 


2 


20 (Vance. Granville. Franklin, Warren) 


NC 


10 


21 (Davidson) 


sc 


10 


23 (Robeson. Bladen. Scotland. Columbus) 


sc 


5 


26 (Johnston) 


SC 


2 


27 (Wake) 


SC 


26 


31 (Wayne) 


E 


4 


32 (Wilson. Greene) 


E 


10 


33 (Edgecombe, Nash) 


E 


t 


34 (Halifax) 


E 


iO 


35 (Craven, Jones, Pamlico. Carteret) 


E 


10 


36 (Lenoir) 


E 


io 


38 (Hertford. Bertie. Gates. Northampton) 


E 


4 


39 (Beaufort. Washington. Tyrrell, Hvde, Martin) 


E 


1 


40 (Pasquotank, Chowan, Perquimans, Camden, Dare, Currituck) 


E 


10 


41 (Duplin, Sampson) 


E 


10 



(b) "Detox-only beds for adults" are chemical dependency treatment beds that are occupied exclusively by persons who are JJ 
years of age or older who are experiencing physiological withdrawal from the effects of alcohol or other drugs. 

(c) The county or counties which comprise each mental health planning area are listed in iO NCAC 3R .3054(b). 

(d) Detox-only beds for adults may be developed outside of the mental health planning area in which they are needed ifi 



264 



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PROPOSED RULES 



(\) The beds are developed in a contiguous mental health planning area that is within the same mental health planning region. 

as defined by 10 NCAC 3R .3054(c): and 
(2) The program board in the planning area in which the beds are needed and the program board in the planning area in 

which the beds are to be developed each adopt a resolution supporting the development of the beds in the contiguous 

plaiming area. 

Authority G.S. 131E'176(25); 131E-177(1): 131E-]83(b). 



.3079 INTERMEDIATE CARE BEDS FOR THE MENTALLY RETARDED NEED DETERMINATION 
(REVIEW CATEGORY C) 

Intermediate Care Beds for the Mentally Retarded. U is determined that the mental health planning areas listed in the following 
table need additional Intermediate Care Beds for the Mentally Retarded ("ICF/MR beds"). The table identifies the number of new 
child and adult ICF/MR beds needed by each of the listed planning areas. These new ICF/MR beds shall only be used to convert 
existing five-bed ICF/MR beds into six-bed facilities. There is no need for new ICF/MR facilities or for any additional ICF/MR 
beds in any other mental health planning areas, except as provided in Rule 10 NCAC 3R .3055(a)(8). 



Mental Health Planning Area (Constituent Counties) 


Need 
Determination 




Child 


Adult 


3 (Alleghany. Ashe. Avery. Watauga. Wilkes) 




4 
2 


14 (Forsyth. Stokes) 


16 (Guilford) 


Q 


2 


21 (Davidson) 


Q 


i 


18 (Orange. Person. Chatham) 


Q 


3 


30 (Onslow) 


Q 


i 


24 (Cumberland) 


Q 


i 


37 (Pitt) 





1 



Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3080 POLICIES FOR GENERAL ACUTE CARE HOSPITALS 

(a) Use of Licensed Bed Capacity Data for Planning Purposes. For planning purposes the number of licensed beds shall be 
determined by the Division of Facility Services in accordance with standards found in 10 NCAC 3C .6200 and .3102(d). 

(b) Utilization of Acute Care Hospital Bed Capacity. Conversion of underutilized hospital space to other needed purposes shall 
be considered an alternative to new construction. Hospitals falling below utilization targets in Paragraph (e) of this Rule are 
assumed to have imderutilized space. Any such hospital proposing new construction must clearly demonstrate that n is more cost- 
effective than conversion of existing space. 

(c) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital Projects. Projects for which 
certificates of need are sought by academic medical center teaching hospitals may qualify for exemption from provisions of IQ 
NCAC 3R .3056 through .3079. 

(1) The State Medical Facilities Plaruiing Section shall designate as an Academic Medical Center Teaching Hospital any 
facility whose application for such designation demonstrates the following characteristics of the hospital: 

(A) Serves as a primary teaching site for a school of medicine and at least one other health professional school, 
providing undergraduate, graduate and postgraduate education. 

(B) Houses extensive basic medical science and clinical research programs, patients and equipment. 

(C) Serves the treatment needs of patients from a broad geographic area through multiple medical specialties. 

(2) Exemption fi'om the provisions of 10 NCAC 3R .3056 through .3079 shall be granted to projects submitted by Academic 
Medical Center Teaching Hospitals designated prior to January Ll 1990 which projects comply with one of the following 
conditions: 

(A) Necessary to complement a specified and approved expansion of the number or types of students, residents or 



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August 15, 1997 



265 



PROPOSED RULES 



mi 

iCi 



faculty, as certified by the head of the relevant associated professional school: or 

Necessary to accommodate patients, staff or equipment for a specified and approved expansion of research 

activities, as certified by the head of the entity sponsoring the research: or 



Necessary to accommodate changes in requirements of specialty education accrediting bodies, as evidenced by 
copies of documents issued by such bodies, 
(d) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to rehabilitation or psychiatric use 
shall obtain a certificate of need to convert this capacity back to acute care. Application for reconversion of acute care beds 
converted to psychiatry or rehabilitation back to acute care beds shall be evaluated against the hospital's utilization in relation to 
the target occupancies for acute care beds shown in this Paragraph, without regard to the acute care bed need determinations shown 
in 10 NCAC 3R .3057. 



Licensed Bed Capacity 

ii49 

50;99 

100 - 199 

200 - 699 

700 + 



Percent Occupancy 
65% 
70% 
75% 
80% 
81.5% 



(e) Replacement of Acute Care Bed Capacity. The evaluation of proposals for either partial or total replacement of acute care 
beds (i.e.. construction of new space for existing acute care beds) shall be evaluated against the utilization of the total number of 
acute care beds in the applicant's hospital in relation to the target occupancy of the total number of beds in that hospital which is 
determined as follows: 

Total Licensed Acute Care Beds Target Occupancy (Percent) 

i;49 65^ 

50;99 70^ 

I00;I99 75^ 

200;699 80^ 

700 + 81.5% 



Authority G.S. 131E-176(25): 131E-I77(1); 13]E-183(b). 

.3081 POLICIES FOR INPATIENT 

REHABILITATION SERVICES 

(a) Distribution of Inpatient Rehabilitation Beds. After 
applying other required criteria, when superiority among two 
or more competing rehabilitation facility certificate of need 
applications is uncertain, favorable consideration shall be given 
to proposals that make rehabilitation services more accessible 
to patients and their families or are part of a comprehensive 
regional rehabilitation network. 

(b) Outpatient and Home Care. Rehabilitation care which 
can be provided in an outpatient or home setting shall be 
provided in these settings unless u has been determined by an 
appropnate utilization program that inpatient care is necessary. 
All new inpatient rehabilitation programs are required to 
provide comprehensive outpatient rehabilitation services as part 
of their service delivery programs. 

Authority G.S. 131 £-176(25): 131E-177(1): 131E-183(b). 

.3082 POLICIES FOR AMBULATORY SURGICAL 
FACILITIES 

Multi-Specialty Ambulatory Surgery. After applying other 
required criteria, when superiority among two or more 
competing ambulatory surgical facility certificate of need 
applications is uncertain, favorable consideration shall be given 
to "multi-specialty programs" over "specialty programs" in 
areas where need is demonstrated in 10 NCAC 3R .3059. A 



multi-specialty ambulatory surgical program means a program 
providing services in at least three of the following areas: 



gynecology, otolaryngology, plastic surgery, general surgery, 
ophthalmology, orthopedics, urology, and oral sur gery. An 
ambulatory surgical facility shall provide at least two 
designated operating rooms with general anesthesia capabilities, 
and at least one designated recovery room. 

Authority G.S. 131E-176(25); 131E-177(1): 131E-183(b). 

.3083 POLICIES FOR NURSING CARE FACILITIES 

(a) Provision of Hospital-Based Long-Term Nursing Care. 
(1 ) A certificate of need may be issued to a hospital 
which is licensed under G.S. 131E. Article 5^ and 
which meets the conditions set forth in this 
Paragraph and in 10 NCAC 3R . 1 100. to convert u^ 
to 10 beds from its licensed acute care bed capacity 
for use as hospital-based long-term nursing care beds 
without regard to determinations of need in 10 
NCAC 3R .3072 if the hospital: 

(A) is located in a county which was designated as 
non-metropolitan by the U.S. Office of 
Management and Budget on January J^ 1997: 
and 

(B) on January 1. 1997. had a licensed acute care 
bed capacity of 150 beds or less. 

The certificate of need shall remain in force as long 
as tlie Depanment of Human Resources determines 



266 



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PROPOSED RULES 



(1) The beds are developed in a contiguous mental health planning area that is within the same mental health planning region. 
as defined by 10 NCAC 3R .3054(c): and 

(2) The program board in the planning area in which the beds are needed and the program board in the planning area in 
which the beds are to be developed each adopt a resolution supporting the development of the beds in the contiguous 
planning area. 

Authority G.S. 131 £-176(25); 131 £-177(1); 1 31 £-1 83(b). 

.3079 INTERMEDIATE CARE BEDS FOR THE MENTTALLY RETARDED NEED DETERMINATION 
(REVIEW CATEGORY C) 

Intermediate Care Beds for the Mentally Retarded. It is determined that the mental health plarming areas listed in the following 
table need additional Intermediate Care Beds for the Mentally Retarded ("ICF/MR beds"). The table identifies the number of new 
child and adult ICF/MR beds needed by each of the listed planning areas. These new ICF/MR beds shall only be used to convert 
existing five-bed ICF/MR beds into six-bed facilities. There is no need for new ICF/MR facilities or for any additional ICF/MR 
beds in any other mental health planning areas, except as provided in Rule 10 NCAC 3R .3055(a)(8). 



Mental Health Planning Area (Constituent Counties) 


Need 
Determination 




Child 


Adult 


3 (Alleghany. Ashe. Averv. Watauga. Wilkes) 


Q 
Q 


4 

2 


14 (Forsyth, Stokes) 


16 (Guilford) 





2 


21 (Davidson) 


Q 


i 


18 (Orange. Person. Chatham) 


Q 


3 


30 (Onslow) 


Q 


i 


24 (Cumberland) 


Q 


i 


37 (Pitt) 





i 



Authority G.S. 131 £-176(25); 131 £-177(1); 131£-183(b). 

.3080 POLICIES FOR GENERAL ACUTE CARE HOSPITALS 

(a) Use of Licensed Bed Capacity Data for Planning Purposes. For plarming purposes the number of licensed beds shall be 
determined by the Division of Facility Services in accordance with standards found in 10 NCAC 3C .6200 and .3102(d). 

(b) Utilization of Acute Care Hospital Bed Capacity. Conversion of underutilized hospital space to other needed purposes shall 
be considered an alternative to new construction. Hospitals falling below utilization targets in Paragraph (e) of this Rule are 
assumed to have underutilized space. Any such hospital proposing new construction must clearly demonstrate that it is more cost- 
effective than conversion of existing space. 

(c) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital Projects. Projects for which 
certificates of need are sought by academic medical center teaching hospitals may qualify for exemption from provisions of 10 
NCAC 3R .3056 through .3079. 

(1) The State Medical Facilities Planning Section shall designate as an Academic Medical Center Teaching Hospital any 
facility whose application for such designation demonstrates the following characteristics of the hospital: 

(A) Serves as a primary teaching site for a school of medicine and at least one other health professional school, 
providing undergraduate, graduate and postgraduate education. 

(B) Houses extensive basic medical science and clinical research programs, patients and equipment. 

(C) Serves the treatment needs of patients from a broad geographic area through multiple medical specialties. 

(2) Exemption from the provisions of 10 NCAC 3R .3056 through .3079 shall be granted to projects submitted by Academic 
Medical Center Teaching Hospitals designated prior to January L, 1990 which projects comply with one of tlie following 
conditions: 

(A) Necessary to complement a specified and approved expansion of the number or types of students, residents or 



12:4 



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August 15, 1997 



265 



PROPOSED RULES 






faculty, as certified by the head of the relevant associated professional school: or 

Necessar\' to accommodate patients, staff or equipment for a specified and approved expansion of research 

activities, as certified by the head of the entity sponsoring the research: or 



Necessary to accommodate changes in requirements of specialty education accrediting bodies, as evidenced by 
copies of documents issued by such bodies, 
(d) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to rehabilitation or psychiatric use 
shall obtain a certificate of need to convert this capacity back to acute care. Application for reconversion of acute care beds 
converted to psvchiatrv or rehabilitation back to acute care beds shall be evaluated against the hospital's utilization in relation to 
the target occupancies for acute care beds shown in this Paragraph, without regard to the acute care bed need determinations shown 
in 10 NCAC 3R .3057. 



Licensed Bed Capacity 

i;49 

50;99 

100 - 199 

200 - 699 

700 + 



Percent Occupancy 
65% 
70% 
75% 
80% 
81.5% 



(e) Replacement of Acute Care Bed Capacity. The evaluation of proposals for either partial or total replacement of acute care 
beds (i.e.. construction of new space for existing acute care beds) shall be evaluated against the utilization of the total number of 
acute care beds in tlie applicant's hospital in relation to the target occupancy of the total number of beds in that hospital which is 
determined as follows: 

Total Licensed Acute Care Beds Target Occupancy (Percent) 

i;49 65^ 

50;99 70^ 

100^199 75^ 

200^699 80^ 

700 + 81.5% 



Authority G.S. 131E-176(25): 131E-177(1); 131E-183(b). 

.3081 POLICIES FOR INPATIENT 

RER\BILITATION SERVICES 

(a) Distribution of Inpatient Rehabilitation Beds. After 
applying other required criteria, when superiority among two 
21 more competing rehabilitation facility certificate of need 
applications is uncertain, favorable consideration shall be given 
to proposals that make rehabilitation services more accessible 
to patients and their families or are part of a comprehensive 
regional rehabilitation network. 

(b) Outpatient and Home Care. Rehabilitation care which 
can be provided in an outpatient or home setting shall be 
provided in these settings unless k has been determined by an 
appropriate utilization program that inpatient care is necessary. 
All new inpatient rehabilitation programs are required to 
provide comprehensive outpatient rehabilitation services as part 
of their service delivery programs. 

Authority G.S. 131E-176(25): 131E-177(1); 13lE-183(b}. 

.3082 POLICIES FOR AMBULATORY SURGICAL 
FACILITIES 

Multi-Specialty Ambulatory Surgery. After applying other 
required criteria, when superiority among two or more 
competing ambulator,' surgical facility certificate of need 
applications is uncertain, favorable consideration shall be given 
to "multi-specialty programs" over "specialty programs" in 
areas where need is demonstrated in 10 NCAC 3R .3059. A 



multi-specialty ambulatory surgical program means a program 
providing services in at least three of the following areas: 
gynecology, otolaryngology, plastic surgery, general surgery, 
ophthalmology, orthopedics, urology, and oral surgery. An 
ambulatory surgical facility shall provide at least two 
designated operating rooms with general anesthesia capabilities. 
and at least one designated recovery room. 

Authority G.S. 1 31 E-1 76(25); 131E-177(1): 1 31 E-1 83(b). 

.3083 POLICIES FOR NURSEVG CARE FACILITIES 

(a) Provision of Hospital-Based Long-Term Nursing Care. 
(1) A certificate of need may be issued to a hospital 
which is licensed under G.S. 131E. Article 5^ and 
which meets the conditions set forth in this 
Paragraph and in 10 NCAC 3R .1100. to convert up 
to 10 beds from its licensed acute care bed capacity 
for use as hospital-based long-term nursing care beds 
without regard to determinations of need in 10 
NCAC 3R .3072 if the hospital: 

(A) is located in a county which was designated as 
non-metropolitan by the U.S. Office of 
Management and Budget on January L, 1997: 
and 

(B) on January 1. 1997. had a licensed acute care 
bed capacity of 150 beds or less. 

The certificate of need shall remain in force as long 
as tlie Department of Human Resources determines 



266 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



PROPOSED RULES 



that the hospital is meeting the conditions outlined in 
this Paragraph. 

(2) "Hospital-based long-term nursing care" is defined as 
lon g-term nursing care provided to a patient who has 
been directly discharged from an acute care bed and 
cannot be immediately placed in a licensed nursing 
facility because of the unavailability of a bed 
a ppropriate for the individual's needs. 
Determination of the patient's need for hospital- 
based long-term nursing care shall be made in 
accordance with criteria and procedures for 
determining need for long-term nursing care 
administered by the Division of Medical Assistance 
and the Medicare program. Beds developed under 
this Paragraph are intended to provide placement for 
residents only when placement in other long-term 
care beds is unavailable in the geographic area. 
Hospitals which develop beds under this Paragraph 
shall discharge patients to other nursing facilities 
with available beds in the geographic area as soon as 
possible where appropriate and permissible under 
applicable law. Necessary documentation including 
copies of physician referral forms (FL 2) on all 
patients in hospital -based nursing units shall be made 
available for review upon request by duly authorized 
representatives of licensed nursing facilities. 

G) For purposes of this Paragraph, beds in hospital- 
based long-term nursing care shall be certified as a 
"distinct part" as defined by the Health Care 
Financing Administration. Beds in a "distinct part" 
shall be converted from the existing licensed bed 
capacity of the hospital and shall not be reconverted 
to any other category or type of bed without a 
certificate of need. An application for a certificate of 
need for reconverting beds to acute care shall be 
evaluated against the hospital's service needs 
utilizing target occupancies shown in 10 NCAC 3R 
■3080(d). without regard to the acute care bed need 
shown in 10 NCAC 3R .3057. 

(4) A certificate of need issued for a hospital-based long- 
term nursing care unit shall remain ijn force as long 
as tlie following conditions are met: 

(A) the beds shall be certified for participation in 
the lille XVIII (Medicare) and litis XIX 
(Medicaid) Programs: 

(B) the hospital discharges residents to other 
nursing facilities in tlie geographic area with 
available beds when such discharge is 
appropriate and permissible under applicable 
law: 

(C) patients admitted shall have been acutely ill 
inpatients of an acute hospital or its satellites 
immediately preceding placement in tlie unit. 
The granting of beds for hospital -based long- 
term nursing care shall not allow a ho spital to 
convert additional beds without first obtaining 
a certificate of need. Where any hospital, or 



the parent corporation or entity of such 

hospital, any subsidiary corporation or entity 

of such hospital, or any corporation or entity 

related to or affiliated with such hospital by 

common ownership, control or management: 

(ij applies for and receives a certificate of 

need for long-term care bed need 

determinations in 10 NCAC 3R .3072: 

SI 
(ii) currently has nursing home beds 
licensed as a part of the hospital under 
G.S. 131E. Article s: or 
(iii> currently operates long-term care beds 
under the Federal Swing Bed Program 
(P.L. 96-499). such hospital shall not 
be eligible to apply for a certificate of 
need for hospital -based lon g-term care 
nursing beds under this Rule. 
Hospitals designated by the State of 
North Carolina as Rural Primary Care 
Hospitals pursuant to Section 1 820(f) of 
the Social Security Act, as amended, 
which have not been allocated long- 
term care beds under provisions of G.S. 
131E-175 through 131E-190. may 
a pply to develop beds under this 
Paragraph. However, such hospitals 
shall not develop long-term care beds 
both to meet needs determined in 10 
NCAC 3R .3072 and this Paragraph. 
(5) Beds certified as a "distinct part" under this 
Paragraph shall be counted in tlie inventory of 
existing long-term care beds and used in the 
calculation of unmet long-term care bed need for the 
general population of a planning area. A pplications 
for certificates of need pursuant to tliis Paragraph 
shall be accepted only for the February 1 review 
cycle. Beds awarded under this Paragraph shall be 
deducted from need determinations for the county as 
shown in 10 NCAC 3R .3072. Continuation of this 
policy shall be reviewed and approved by the 
Department of Human Resources armually. 
Certificates of need issued under policies analogous 
to tliis policy in State Medical Facilities Plans 
subsequent to the 1986 State Medical Facilities Plan 
are automatically amended to conform with the 
provisions of this Paragraph. The Department of 
Human Resources shall monitor this program and 
ensure that patients affected by this Paragraph are 
receiving a ppropriate services, and that conditions 
under which the certificate of need was granted are 
being met, 
(b) Plan Exemption for Continuing Care Facilities. 
(1) Qualified continuing care facilities may include from 
the outset, or add or convert bed capacity for long- 
term nursing care without regard to the bed need 
shown in 10 NCAC 3R .3072. To qualify for such 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



267 



PROPOSED RULES 



£21 



exemption, applications for certificates of need shall 
show that the proposed long-term nursing bed 
capacity: 

(A) Will only be developed concurrently with, or 
subsequent to construction on the same site, of 
facilities for both of the following levels of 
care: 

£i} independent living accommodations 
(apartments and homes) for persons 
who are able to carry out normal 
activities of daily living without 
assistance; such accommodations may 
be in the form of apartments, flats, 
houses, cottages, and rooms within a 
suitable structure: 

(ii) domiciliary care (adult care) beds for 
use by persons who, because of age or 
disability require some personal 
services, incidental medical services, 
and room and board to assure their 
safety and comfort. 

(B) Will be used exclusively to meet the needs of 
persons with whom the facility has continuing 
care contracts (in compliance with the 
Department of Insurance statutes and rules) 
who have lived in a non-nursing unit of the 
continuing care facility for a period of at least 
30 days. Exceptions shall be allowed when 
one spouse or sibling is admitted to the 
nursing unit at the time the other spouse or 
sibling moves into a non-nursing unit, or 
when the medical condition requiring nursing 
care was not known to exist or be imminent 
when the individual became a party to the 
continuing care contract. Financial 
consideration paid by persons purchasing a 
continuing care contract shall be equitable 
between persons entering at the "independent 
living" and "domiciliary" levels of care. 

(C) Reflects the number of beds required to meet 
the current or projected needs of residents 
with whom the facility has an agreement to 
provide continuing care, after making use of 
all feasible alternatives to institutional nursing 
care. 

(D) Will not be certified for participation in the 
Medicaid program. 

One half of the long-term nursing beds developed 
under this exemption shall be excluded from the 
inventory used to project bed need for the general 
population. Certificates of need issued under 
policies analogous to tins policy in State Medical 
Facilities Plans subsequent to the 1985 SMFP are 
automatically amended to conform with the 
provisions of this Paragraph. Certificates of need 
awarded pursuant to ttie provisions of Chapter 920. 
Session Laws 1983. or Chapter 445. Session Laws 



1985 shall not be amended. 

(c) Determination of Need for Additional Nursing Beds in 
Single Provider Counties. When a long-term care facility with 
fewer than 80 nursing care beds is the only nursing care facility 
within a county, it may apply for a certificate of need for 
additional nursing beds in order to bring the minimum number 
of beds available within the county to no more than 80 nursing 
beds without regard to the nursing bed need determination for 
that county as listed in 10 NCAC 3R .3072. 

(d) Relocation of Certain Nursing Facility Beds. 

(1) A certificate of need to relocate existing licensed 
nursing facility beds to another countydes) may be 
issued to a facility licensed as a nursing facility under 
G.S. 131E. Anicle 6^ Part A, provided that the 
conditions set forth in this Paragraph and in 10 
NCAC 3R .1100 and the review criteria in G.S. 
I31E-183(a) are met. A facility applying for a 
certificate of need to relocate nursing facility beds 
shall demonstrate that: 

(A) it IS a non-profit nursing facility supported by 
and directly affiliated with a particular 
religion and that it is the only nursing facility 
in North Carolina supported by and affiliated 
with that religion: 

(B) the primary purpose for the nursing facility's 
existence is to provide long-term care to 
followers of tlie specified religion in ai 
environment which emphasizes religious 
customs, ceremonies, and practices: 

(C) relocation of the nursing facility beds to one 
or more sites is necessary to more effectively 
provide long-term nursing care to followers of 
the specified religion in an environment which 
emphasizes religious customs, ceremonies. 
and practices: 

(D) the nursing facility is expected to serve 
followers of the specified religion from a 
multi-county area: and 

(E) the needs of the population presently served 
shall be met adequately pursuant to G.S. 
131E-183. 

(2) Exemption from the provisions of 10 NCAC 3R 
.3072 shall be granted to a nursing facility for 
purposes of relocating existing licensed nursing beds 
to another county provided that it complies with all 
of the criteria listed in Subparagraph (d)(1) of this 
Rule. 

(3) Any certificate of need issued under this Rule shall 
be subject to the following conditions: 

(A) the nursing facility shall relocate beds in at 
least two stages over a period of at least six 
months: and 

(B) the nursing facility shall provide a letter to the 
Medical Facilities Licensure Section, on or 
before the date that the first group of beds are 
relocated, irrevocably committing the facility 
to relocate all of the nursing facility beds for 



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August 15, 1997 



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PROPOSED RULES 



that the hospital is meeting the conditions outlined in 
this Paragraph. 

(2) "Hospital -based long-term nursing care" is defined as 
long-term nursing care provided to a patient who has 
been directly discharged from an acute care bed and 
caimot be immediately placed in a licensed nursing 
facility because of the unavailability of a bed 
a ppropriate for the individual's needs. 
Determination of the patient's need for hospital- 
based long-term nursing care shall be made in 
accordance with criteria and procedures for 
determining need for long-term nursing care 
administered by the Division of Medical Assistance 
and the Medicare program. Beds developed under 
this Paragraph are intended to provide placement for 
residents only when placement in other long-term 
care beds is unavailable in the geographic area. 
Hospitals which develop beds under this Paragraph 
shall discharge patients to other nursing facilities 
with available beds in the geographic area as soon as 
possible where appropriate and permissible under 
applicable law. Necessary documentation including 
copies of physician referral forms (FL 2) on all 
patients in hospital -based nursing units shall be made 
available for review upon request by duly authorized 
representatives of licensed nursing facilities. 

(3) For purposes of this Paragraph, beds in hospital- 
based long-term nursing care shall be certified as a 
"distinct part" as defined by the Health Care 
Financing Administration. Beds in a "distinct part" 
shall be converted from the existing licensed bed 
capacity of the hospital and shall not be reconverted 
to any other category or type of bed without a 
certificate of need. An application for a certificate of 
need for reconverting beds to acute care shall be 
evaluated against the hospital's service needs 
utilizing target occupancies shown in 10 NCAC 3R 
■ 3080(d). without regard to the acute care bed need 
shown in 10 NCAC 3R .3057. 

(4) A certificate of need issued for a hospital-based long- 
term nursing care unit shall remain in force as long 
as the following conditions are met: 

(A) the beds shall be certified for participation in 
the litle XVIII (Medicare) and litle XIX 
(Medicaid) Programs: 

(B) the hospital discharges residents to other 
nursing facilities in tlie geographic area with 
available beds when such discharge is 
appropriate and permissible under applicable 
law: 

(C) patients admitted shall have been acutely ill 
inpatients of an acute hospital or its satellites 
immediately preceding placement in the unit. 
The granting of beds for hospital -based long- 
term nursing care shall not allow a hospital to 
convert additional beds without first obtaining 
a certificate of need. Where any hospital, or 



the parent corporation or entity of such 
hospital, any subsidiary corporation or entity 
of such hospital, or any corporation or entity 
related to or affiliated with such hospital by 
common ownership, control or management: 
(i) applies for and receives a certificate of 
need for long-term care bed need 
determinations in 10 NCAC 3R .3072: 
or 
(ii) currently has nursing home beds 
licensed as a part of the hospital under 
G.S. 131E. Article s: or 
(iii) currently operates long-term care beds 
under the Federal Swing Bed Program 
(P.L. 96-499). such hospital shall not 
be eligible to apply for a certificate of 
need for hospital-based lon g-term care 
nursing beds under this Rule. 
Hospitals designated by the State of 
North Carolina as Rural Primary Care 
Hospitals pursuant to Section 1 820(f) of 
the Social Security Act, as amended, 
which have not been allocated long- 
term care beds under provisions of G.S. 
131E-175 through 131E-190. may 
apply to develop beds under this 
Paragraph. However, such hospitals 
shall not develop long-term care beds 
both to meet needs determined in 10 
NCAC 3R .3072 and this Paragraph. 
(5) Beds certified as a "distinct part" under this 
Paragraph shall be counted in the inventory of 
existing long-term care beds and used in the 
calculation of unmet long-term care bed need for the 
general population of a planning area. Applications 
for certificates of need pursuant to tins Paragraph 
shall be accepted only for the February 1 review 
cycle. Beds awarded under this Paragraph shall be 
deducted from need determinations for the county as 
shown in 10 NCAC 3R .3072. Continuation of this 
policy shall be reviewed and approved by the 
Department of Human Resources annually. 
Certificates of need issued under policies analogous 
to this policy in State Medical Facilities Plans 
subsequent to the 1986 State Medical Facilities Plan 
are automatically amended to conform with the 
provisions of this Paragraph. The Department of 
Human Resources shall monitor this program and 
ensure that patients affected by this Paragraph are 
receiving a ppropriate services, and that conditions 
under which the certificate of need was granted are 
being met, 
(b) Plan Exemption for Continuing Care Facilities. 
(1) Qualified continuing care facilities may include from 
the outset, or add or convert bed capacity for long- 
term nursing care without regard to the bed need 
shown in 10 NCAC 3R .3072. To qualify for such 



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267 



PROPOSED RULES 



exemption, applications for certificates of need shall 
show that the proposed long-term nursing bed 
capacity: 

(A) Will only be developed concurrently with, or 
subsequent to construction on the same site, of 
facilities for both of the following levels of 
care: 

Ijj independent living accommodations 

(apartments and homes) for persons 

who are able to carry out normal 

activities of daily living without 

assistance; such accommodations may 

be in the form of apartments, flats. 

houses, cottages, and rooms within a 

suitable structure: 

tii) domiciliary care (adult care) beds for 

use by persons who, because of age or 

disability require some personal 

services, incidental medical services. 

and room and board to assure their 

safety and comfort. 

£B) Will be used exclusively to meet the needs of 

persons with whom the facility has continuing 

care contracts (in compliance with the 

Department of Insurance statutes and rules) 

who have lived in a non-nursing unit of the 

continuing care facility for a period of at least 

30 days. Exceptions shall be allowed when 

one spouse or sibling is admitted to the 

nursing unit at tlie time the other spouse or 

sibling moves into a non-nursing unit, or 

when the medical condition requiring nursing 

care was not known to exist or be imminent 

when the individual became a party to the 

continuing care contract. Financial 

consideration paid b^ persons purchasing a 

continuing care contract shall be equitable 

between persons entering at tlie "independent 

living" and "domiciliary" levels of care. 

(C) Reflects the number of beds required to meet 
the current or projected needs of residents 
with whom the facility has an agreement to 
provide continuing care, after making use of 
all feasible alternatives to institutional nursing 
care. 

(D) Will not be certified for participation in the 
Medicaid program. 

(2) One half of tlie long-term nursing beds developed 
under this exemption shall be excluded from the 
inventory used to project bed need for the general 
population. Certificates of need issued under 
policies analogous to tliis policy in State Medical 
Facilities Plans subsequent to tlie 1985 SMFP are 
automatically amended to conform with the 
provisions of this Paragraph. Certificates of need 
awarded pursuant to tlie provisions of Chapter 920. 
Session Laws 1983. or Chapter 445. Session Laws 



1985 shall not be amended. 

(c) Determination of Need for Additional Nursing Beds in 
Single Provider Counties. When a long-term care facility with 
fewer than 80 nursing care beds is the only nursing care facility 
within a county, it may apply for a certificate of need for 
additional nursing beds in order to bring the minimum number 
of beds available within the county to no more than 80 nursing 
beds without regard to the nursing bed need determination for 
that county as listed in 10 NCAC 3R .3072. 

(d) Relocation of Certain Nursing Facility Beds. 

d ) A certificate of need to relocate existing licensed 
nursing facility beds to another countyfies) may be 
issued to a facility licensed as a nursing facility under 
G.S. 131E. Anicie 6^ Pan A^ provided that the 
conditions set forth in tliis Paragraph and in 10 
NCAC 3R .1100 and tlie review criteria in G.S. 
131E-183(a) are met. A facility applying for a 
certificate of need to relocate nursing facility beds 
shall demonstrate that: 

(A) it IS a non-profit nursing facility supported by 
and directly affiliated with a particular 
religion and that it is the only nursing facility 
in North Carolina supported by and affiliated 
with that religion: 

(B) the primary purpose for the nursing facility's 
existence is to provide long-term care to 
followers of the specified religion in an 
environment which emphasizes religious 
customs, ceremonies, and practices: 

(C) relocation of tlie nursing facility beds to one 
or more sites is necessary to more effectively 
provide long-term nursing care to followers of 
the specified religion in an environment which 
emphasizes religious customs, ceremonies, 
and practices; 

(D) the nursing facility is expected to serve 
followers of t]ie specified religion from a 
multi-county area: and 

(E) the needs of die population presently served 
shall be met adequately pursuant to G.S. 
131E-I83. 

(2) Exemption from the provisions of 10 NCAC 3R 
.3072 shall be granted to a nursing facility for 
purposes of relocating existing licensed nursing beds 
to another county provided that it complies with all 
of the criteria listed in Subparagraph (d)(1) of this 
Rule. 

(3) Any certificate of need issued under this Rule shall 
be subject to tlie following conditions: 

(A) the nursing facility shall relocate beds in at 
least two stages over a period of at least six 
months: and 

(B) the nursing facility shall provide a letter to the 
Medical Facilities Licensure Section, on or 
before the date that the first group of beds are 
relocated, irrevocably committing the facility 
to relocate all of the nursing facility beds for 



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August 15, 1997 



12:4 



PROPOSED RULES 



£3} 



which it has a certificate of need to relocate: 
and 
(C) subsequent to providing the letter to the 
Medical Facilities Licensure Section described 
in Part (d)(3)(B) of this Rule, the nursing 
facility shall accept no new patients in the 
beds which are being relocated, except new 
patients who, prior to admission, indicate their 
desire to transfer to the facility's new 
location(s). 

Authority G.S. 13IE-176(25); 131E-177(1); 131E-183(b). 

.3084 POLICIES FOR HOME HEALTH SERVICES 

£a) Development of Home Health Services. After applying 
other required criteria, when superiority among two or more 
competing home health a gency or office certificate of need 
a pplications is uncertain, favorable consideration shall be given 
to proposals which: 

(1) provide an expanded scope of services (including 

nursing, physical therapy, speech therapy, and home 

health aide service): 

provide the widest range of treatments within a given 

service: and 

have the ability to offer services on a seven days p er 

week basis as required to meet patient needs. 
£b) Need Determination Upon Termination of County's Sole 
Home Health Agency. When a home health agency's board of 
directors, or in the case of a public agency, the responsible 
public body, votes to discontinue the agency's provision of 
home health services: and 

(1) the agency is the only home health agency with an 
office physically located in the county: and 

(2) the agency is not being lawfully transferred to 
another entity: 

need for a new home health agency or office in the county is 
thereby established through this Rule. Following receipt of 
written notice of such decision from the home health agency's 
chief administrative officer, the Certificate of Need Section 
shall give public notice of the need for one home health agency 
or office in the county, and the dates of the review of 
applications to meet the need. Such notice shall be given no 
less than 45 days prior to the final date for receipt of 
a pplications in a newspaper serving the county and to home 
health agencies located outside the county reporting serving 
county patients in the most recent licensure applications on file. 

Authority G.S. 131 £-176(25); 131 £-177(1); 1 31 £-1 83(b). 

.3085 POLICIES FOR END-STAGE RENAL DISEASE 
DIALYSIS SERVICES 

£al Availability of Dialysis Care. After a pplying other 
required criteria, when superiority among two or more 
competing dialysis facility or station certificate of need 
a pplicatioas is uncertain, favorable consideration shall be given 
tQ a pplicants proposing to provide or arrange for: 

Q} home training and backup for patients suitable for 



home dialysis in tlie ESRD dialysis facility or in a 
facility that is a reasonable distance from the 
patient's residence: 

(2) ESRD dialysis service availability at times that do 
not interfere with ESRD patients' work schedules: 

(3) services in rural, remote areas. 

(b) Relocation of Dialysis Stations. Relocations of existing 
dialysis stations are allowed only within the host county and to 
contiguous cotmties currently served by the facility. Certificate 
of need applicants proposing to relocate dialysis stations shall: 

(1) demonstrate that the proposal shall not result in a 
deficit in tlie number of dialysis stations in the 
county that would be losing stations as a result of the 
proposed project, as reflected in tlie most recent 
Semiannual Dialysis Report, and 

(2) demonstrate that the proposal shall not result in a 
surplus of dialysis stations in the county that would 
gain stations as a result of the proposed project, as 
reflected in tlie most recent Semiannual Dialysis 
Report. 

Authority G.S. 131 £-176(25); 131 £-177(1); 1 31 £-1 83(b). 

.3086 POLICIES FOR PSYCHIATRIC INPATIENT 
FACILITIES 

(a) Transfer of Beds from State Psychiatric Hospitals to 
Community Facilities. Beds in the State psychiatric hospitals 
used to serve short-term psychiatric patients may be relocated 
to community facilities. However, before beds are transferred 
out of the State psychiatric hospitals, appropriate services and 
pro grams shall be available in the community. State hospital 
beds which are relocated to community facilities shall be closed 
within 90 days following the date the transferred beds become 
operational in the community. Facilities proposing to operate 
transferred beds shall commit to serve the type of short-term 
patients normally placed at the State psychiatric hospitals. To 
help ensure that relocated beds will serve those persons who 
would have been served by the State psychiatric hospitals, a 
proposal to transfer beds from a State hospital shall include a 
written memorandum of agreement between the area 
MH/DD/SAS program serving the county where the beds are 
to be located, the Secretary of Human Resources, and the 
person submitting the proposal. 

(b) Allocation of Psychiatric Beds. A hospital submitting a 
Certificate of Need application to add inpatient psychiatric beds 
shall convert excess licensed acute care beds to psychiatric 
beds. In determining excess licensed acute care beds, the 
hospital shall subtract the average occupancy rate for its 
licensed acute care beds over the previous 12-month period 
from the appropriate target occupancy rate for acute care beds 
listed in 10 NCAC 3R .3080(d) and multiply the difference by 
the number of its existing licensed acute care beds. 

(c) Linkages Between Treatment Settings. An applicant 
applying for a certificate of need for psychiatric inpatient 
facility beds shall document that the affected area mental health, 
developmental disabilities and substance abuse authorities have 
been contacted and invited to comment on the proposed 



12:4 



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August 15, 1997 



269 



PROPOSED RULES 



services. 

Authority G.S. ] 31 £-176(25): 131E-177(1): 131E-183(b). 

.3087 POLICIES FOR CHEMICAL DEPENDENCY 
TREATMENT FACILITIES 

Linkages Between Treatment Settings. An applicant applying 
for a certificate of need for chemical dependency treatment 
facility beds shall document that the affected area mental health, 
developmental disabilities and substance abuse authorities have 
been contacted and invited to comment on the proposed 
services. 

Authority G.S. 131 £-176(25): 131£-177(1): 131£-183(b). 

.3088 POLICIES FOR INTERMEDIATE CARE 

FACILITIES FOR MENTALLY RETARDED 

(a) Determination of Intermediate Care Bed Need for 
Mentally Retarded/Developmentally Disabled Persons. After 
applying other required criteria, when superiority among two 
or more competing ICF/MR certificate of need applications is 
uncertain, favorable consideration shall be given to counties 
that do not have ICF/MR group homes when such counties are 
part of a multi-countv area for which a need is shown in 10 
NCAC 3R .3079. 

(b) Linkages Between Treatment Settings. An applicant 
applying for a certificate of need for intermediate care facility 
beds for mentally retarded shall document that the affected area 
mental health, developmental disabilities and substance abuse 
authorities have been contacted and invited to comment on the 
proposed services. 

Authority G.S. 131£-176(25): 131E-177(1): 131£-183(b). 



TITLE ISA - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the £HNR - Environmental Management Commission 
intends to amend rides cited as 15A NCAC 2D .0101, .0104. 
.0105. .0202. .0302. .0531. .0953. .1005. .1107. .1204. 
.1206. .1305, .1503. .1603. .1902. .1903: 2Q .0103. .0108. 
.0207, .0307, .0521. .0805 - .0807: and adopt 2D .1701 - 
.1710. Notice of Rule-making Proceedings for 15A NCAC 2D 
.0101. .0104 - .0105, .0202, .0302. .0531. .0953. .1005. 
.1107. .1503. .1603: .1701 - .1710: and 15A NCAC 2Q .0103, 
.0108. .0307, and .0521 was published in the Register on 
November 1. 1996. Notice of Rule-making Proceedings for 15A 
NCAC 2D .1204. .1206 and .1305 was published in the 
Register on May 15. 1996. Notice of Rule-making Proceedings 
for 15A NCAC 2D .1902 - .1903 and 15A NCAC 2Q .0207 was 
published in the Register on January 2. 1997. Notice of Rule- 
making Proceedings for 15A NCAC 2Q .0805 was published in 
the Register on December 15, 1995. Notice of Rule-making 
Proceedings for 15A NCAC 2Q .0806 - .0807 was published 
in the Register on March 15, 1996. 



Proposed Effective Date: July 1, 1998 

A Public Hearing will be conducted at 7:00 p.m. on September 
8, 1997 at the Ground Floor Hearing Room, Archdale 
Building. 512 N. Salisbury Street. Raleigh, NC 27611. 

Reason for Proposed Action: 

15A NCAC 2D .0101, .0104 - .0105, .0202, .0302, .0531, 
.0953, .1005, .1107, .1305, .1503, and .1603; and ISA 
NCAC 2Q .0103, .0108, .0307, and .0521 - To change the 
Division name due to restructure of the Division of 
Environmental Management and to change the post office box 
of the Division of Air Quality due to a move. 
ISA NCAC 2D .1204 and . 1206 - To clarify that temperature 
measuring devices are required to have a quality assurance 
program and to eliminate the primary chamber temperature 
requirement for medical waste incinerators. 
15A NCAC 2D .1701 - .1710 - The proposed rules for 
controlling landfill gas emissions from "existing " municipal 
solid waste landfills (MSWL) are required to implement the 
Emission Guidelines promulgated by the EPA on March 12, 
1996. The Emission Guidelines rules require each state to 
submit a state plan to the EPA for controlling landfill gas 
emissions from "existing" MSWLs. The proposed rules would 
fulfill a part of all the requirements of an acceptable state plan. 
If North Carolina does not submit an acceptable state plan to 
the EPA then the EPA will develop and implement a federal 
plan to implement the Emission Guideline rules. 
15A NCAC 2D .1902 - .1903 - To change the name of the 
Asbestos Hazard Management Branch to Health Hazards 
Control Branch and to change the name of the Division of 
Environmental Management to Division of Air Quality. 
15A NCAC 2Q .0207 - To add perchloroethylene to the list of 
compounds in 15A NCAC 2Q .0207 for annual reporting of 
emissions is required. 

ISA NCAC 2Q .0805 - .0807 - To re\ise the exclusionary levels 
for permit fee purposes for both grain elevators and cotton gins 
and to clarify that storage tanks that store fuel for an 
emergency generator would not disqualify the generator from 
the exclusionary rules. 

Comment Procedures: All persons interested in these matters 
are invited to attend the public hearings. Any person desiring 
t_o conmient for more than three minutes is requested to submit 
a written statement for inclusion in the record of proceeding s 
Qi the public hearing. The hearing record will remain open 
until October 8. 1997. to receive additional written statements. 
Comments should be sent to and additional information 
concerning the hearing or the proposals may be obtained by 
contacting: 

Mr. Thomas C. Allen 

Division of Air Quality 

PO Box 29580 

Raleigh. North Carolina 27626-0580 

(919) 733-1489 (phone) 

(919) 715-7476 (fax) 

thom_allen@aq.ehnr. state. nc. us (e-mail) 



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12:4 



PROPOSED RULES 



Fiscal Note: These Rules do not have a substantial economic 
impact of at least five million dollars ($5,000,000) in a 12- 
month period. Rules ISA NCAC 2D .0101, .0104 - .0105, 
.0202, .0302, .0531, .0953, .1005, .1107, .1204, .1206, 
.1305, .1503, .1603, .1701 - .1702, .1704, .1706, .1710, 
.1902-. 1903; 2Q. 0103, .0108, .0207, .0307, .0521, .0807 - 
do not affect the expenditures or revenues of state or local 
government funds . 

Rules 15 A NCAC 2D .1703, .1705, .1707 - .1709 - affect the 
expenditures or revenues of local government funds. These 
Rules do not affect the expenditures or revenues of state 
government funds. 

Rules 15 A NCAC2Q .0805 - .0806 - affect the expenditures or 
revenue of state government funds. These Rules do not affect 
the expenditures or revenues of local government funds. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .0100 - DEFINITIONS AND 
REFERENCES 

.0101 DEFINITIONS 

The definition of any word or phrase used in Rules of this 
Subchapter is the same as given in Article 21, Chapter 143 of 
the General Statutes of North Carolina, as amended. The 
following words and phrases, which are not defined in the 
article, have the following meaning: 



(1) 



(2) 



(3) 



(4) 



(5) 



(6) 

(7) 

(8) 



"Act" means "The North Carolina Water and Air 

Resources Act." 

"Air pollutant" means an air pollution agent or 

combination of such agents, including any physical, 

chemical, biological, radiative substance or matter 

which is emitted into or otherwise enters the ambient 

air. 

"Ambient air" means that portion of the atmosphere 

outside of buildings and or other enclosed structures, 

stacks or ducts, and whrch that surrounds human, 

animal or plant life, or property. 

"Approved" means approved by the Director of the 

Division of Air Quality. Environmental 

Management. 

"Capture system" means the equipment (including 

hoods, ducts, fans, etc.) used to contain, capture, or 

transport a pollutant to a control device. 

"CFR" means "Code of Federal Regulations." 

"Combustible material" means any substance which, 

that, when ignited, will bum in air. 

"Construction" means change in method of operation 

or any physical change, mcluding on-site fabrication, 

erection, installation, replacement, demolition, or 

modification of a source, that results in a change in 

emissions or affects the compliance status. 



(9) "Control device" means equipment (fume incinerator, 
adsorber, absorber, scrubber, filtermedia, cyclone, 
electrostatic precipitator, or the like) used to destroy 
or remove air pollutant(s) prior to before discharge 
to the ambient air. 

(10) "Day" means a 24-hour period begimiing at 
midnight. 

(11) "Director" means the Director of the Division of Air 
Quality Envir o nm e ntal Management unless otherwise 
specified. 

(12) "Division" means Division of Air Quality. 
H^ (12) "Dustfall" means particulate matter which that settles 

out of the air and is expressed in units of grams per 
square meter per 30-day period. 

f-t^ (14) "Emission" means the release or discharge, whether 
directly or indirectly, of any air pollutant into the 
ambient air from any source. 

(4^ (15) "Facility" means all of the pollutant emitting 
activities, except transportation facilities as defined 
under Rule .0802 of this Subchapter, that are located 
on one or more adjacent properties under common 
control. 

f+5)£16} "FR" means Federal Register. 

H€i (\l) "Fugitive emission" means those emissions which 
that could not reasonably pass through a stack, 
chimney, vent, or other functionally equivalent 
opening. 

Hy> (18) "Fuel burning equipment" means equipment whose 
primary purpose is the production of energy or 
power from the combustion of any fuel. The 
equipment is generally used for, but not limited to, 
heating water, generating or circulating steam, 
heating air as in warm air furnace, or furnishing 
process heat by transferring energy by fluids or 
through process vessel walls. 

fW> (19) "Garbage" means any animal and vegetable waste 
resulting from the handling, preparation, cooking 
and serving of food. 

"Incinerator" means a device designed to bum solid, 
liquid, or gaseous waste material. 
"Opacity" means that property of a substance tending 
to obscure vision and is measured as in terms of 
percent obscuration. 

f2+)i22) "Open burning" means any fire whose products of 
combustion are emitted directly into the outdoor 
atmosphere without passing through a stack or 
chimney, approved incinerator, or other similar 
device. 

f22)£23} "Owner or operator" means any person who owns, 
leases, operates, controls, or supervises a facility, 
source, or air pollution control equipment. 

(23)£24} "Particulate matter" means any material except 
uncombined water that exists in a finely divided form 
as a liquid or solid at standard conditions. 

<-24-> (25) "Particulate matter emissions" means all finely 
divided solid or liquid material, other than 
uncombined water, emitted to the ambient air as 



fmao 



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271 



PROPOSED RULES 



f25)£26} 



(5^128 



em(29) 






(3^(32) 



e^(33) 



e»>(34) 



(34)135} 



B5)(36) 



(36)£371 



(3?)(381 



measured by methods specified in this Subchapter. 
"Permitted" means any source subject to a permit 
under this Subchapter or Subchapter 15A NCAC 2Q. 
"Person" means any individual, partnership, co- 
partnership, firm, company, corporation, association, 
joint stock company, trust, estate, political 
subdivision, or any other legal entity, or its legal 
representative, agent or assigns. 
"PMIO" means particulate matter with an 
aerodynamic diameter less than or equal to a nominal 
10 micrometers as measured by methods specified in 
this Subchapter. 

"PMIO emissions" means finely divided solid or 
liquid material, with an aerodynamic diameter less 
than or equal to a nominal 10 micrometers emitted to 
the ambient air as measured by methods specified in 
this Subchapter. 

"Refuse" means any garbage, rubbish, or trade 
waste. 
"Rubbish" means solid or liquid wastes from 



residences, 
institutions. 
"Rural area 
devoted to. 



commercial establishments, or 



e»>(39) 



means an area which that is primarily 
but not necessarily limited to, the 
following uses: agriculture, recreation, wildlife 
management, state park, or any area of natural cover. 
"Salvage operation" means any business, trade, or 
industry engaged in whole or in part in salvaging or 
reclaiming any product or material, including, but 
not limited to, metal, chemicals, motor vehicles, 
shipping containers, or drums. 
"Smoke" means small gas-borne particles resulting 
from incomplete combustion, consisting 
predominantly of carbon, ash, and other burned or 
unbumed residue of combustible materials that form 
a visible plume. 

"Source" means any stationary article, machine, 
process equipment, or other contrivance, or 
combination thereof, or any tank-truck, trailer or 
railroad tank car from which air pollutants emanate 
or are emitted, either directly or indirectly. 
"Sulfur oxides" means sulfur dioxide, sulfur trioxide, 
their acids and the salts of their acids. The 
concentration of sulfur dioxide is measured by the 
methods specified in this Subchapter. 
"Total suspended particulate" means any finely 
divided solid or liquid material, except water in 
uncombined form, that is or has been airborne as 
measured by methods specified in this Subchapter. 
"Trade wastes" means all solid, liquid, or gaseous 
waste materials or rubbish resulting from 
combustion, salvage operations, building operations, 
or the operation of any business, trade, or industry 
including, but not limited to, plastic products, paper, 
wood, glass, metal, paint, grease, oil and other 
petroleum products, chemicals, and ashes, 
"ug" means micrograms. 



Authority G.S. 143-215. 3(a)(1); 143-213. 

.0104 INCORPORATION BY REFERENCE 

(a) Anywhere there is a reference to rules contained in the 
Code of Federal Regulations (CFR) or to an American Society 
for Testing and Materials method (ASTM) in this Subchapter, 
those rules and methods are incorporated by reference. 

(b) The Code of Federal Regulations and American Society 
for Testing and Materials methods incorporated by reference in 
this Subchapter shall automatically include any later 
amendments thereto unless a specific rule specifies otherwise. 

(c) The Code of Federal Regulations may be purchased from 
the Superintendent of Documents, P.O. Box 371954, 
Pittsburgh, PA 15250. The cost of the referenced documents 
arc is as follows: 

(1) 40 CFR Parts 1 to 51: thirty-nine fifty dollars 
(53 9 .00). ($50.00). 

(2) 40 CFR Part 52: thiny-nine dollars ($39.00). 

(3) 40 CFR Parts 53 to 59: eleven dollars ($1 1 .00). 

(4) 40 CFR Part 60: thiny-six dollars ($36.00). 

(5) 40 CFR Parts 61 to Hi 00: for t y-oiK thirty-six 
dollars ($41.00). ($36.00). 

t6j 40 CFR Pans 72 to 85: forty-one dollars ($41.00). 
(^iTj 40 CFR Part 86: Parts 81 t o 85 : twen t y-thr e e forty 

dollars ($23.00). ($40.00). 
fhiM 40 CFR Parts 87 to 135: 86 to 99 : thi rt y-nine five 

dollars ($3 9 .00). ($5.00). 
W191 40 CFR Parts 260 to 299: thir t y-six forty dollars 

($36.00). ($40.00). 
These prices are July 1, 1 99 4 October 15. 1996 prices. 

(d) The American Society for Testing and Materials methods 
may be purchased from the Air (Quality Division. Secti o n, P.O. 
Box 29580. 2 9 535, Raleigh, North Carolina 27626-0535 
27626-0580 at a price of twenty cents ($0.20) per page. 

Authority G.S. 150B-2L6. 

.0105 MAILING LIST 

(a) The Air Quali t y Sec t i o n Division shall develop and 
maintain a mailing list of persons who have requested 
notification of rule-making as required by 150B-2 1.2(b). Such 
persons shall receive a copy of the complete notice as filed with 
the Office of Administrative Hearings. 

(b) Any person requesting to be on a mailing list established 
under Paragraph (a) of this Rule shall submit a written request 
to the Air Quality Division. S e cti o n, P.O. Box 29580. 2 9 535, 
Raleigh, North Carolina, 27626. Payment of fees required 
under this Section may be by check or money order in the 
amoun t o f for thirty dollars ($30.00) made payable to the 
Department of Environment, Health, and Natural Resources. 
Payment shall be submitted with each request and received by 
June 1 of each year. The fee covers from July 1 to June 30 of 
the following year. 

Authority G.S. 143-215. 3(a)(1); 150B-21 .2(b). 

SECTION .0200 - AIR POLLUTION 



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SOURCES 



0202 



REGISTRATION OF AIR POLLUTION 
SOURCES 

(a) The dir e c tor Director may require the owner or operator 
of a source of air pollution to register that source. 

(b) Any person required to register a source of air pollution 
with the Division of environmen t al Managemen t shall register 
the source on forms provided by the division Division and shall 
provide the following information: 

(1) the name of the person, company, or corporation 
operating the sources; 

(2) the address, location, and county; 

(3) principal officer of the company; 

(4) quantities and kinds of raw materials used; 

(5) process flow sheets; 

(6) operating schedules; 

(7) total weights and kinds of air pollution released; 

(8) types and quantities of fuels used; 

(9) stack heights; and 
(10) other information considered essential in evaluating 

the potential of the source to cause air pollution. 
The forms shall be completed and returned to the Division 
divisi o n within 60 days following their receipt. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(4). 

SECTION .0300 - AIR POLLUTION 
EMERGENCIES 

.0302 EPISODE CRITERIA 

Conditions justifying the proclamation of an air pollution 
alert, air pollution warning, or air pollution emergency shall be 
deemed to exist whenever the Director determines that the 
accumulation of air contaminants in any place is attaining or 
has attained levels whtdi that could, if such levels are sustained 
or exceeded, lead to a threat to the health of the public. In 
making this determination, the Director shall be guided by the 
following criteria: 

(1) Air Pollution Forecast. An internal watch by the 
Division of Environm e n t al Managemen t and local air 
pollution control agencies shall be activated by a 
National Weather Service advisory that an 
atmospheric stagnation advisory is in effect, or the 
equivalent local forecast of stagnant atmospheric 
conditions. 

Alert. The alert level is that concentration of 
pollutants at which first stage control actions are to 
begin. The Director shall proclaim an alert when 
any of the following levels is reached at any 
monitoring site: 

(a) sulfur dioxide - 800 ug/m' (0.3 p.p.m.), 24- 
hour average; 

particulate — 375 ug/m\ 24-hour average; 
sulfur dioxide and particulate combined - 
product of sulfur dioxide ug/m', 24-hour 
average, and particulate ug/m\ 24-hour 



(2) 



(b) 
(c) 



average, equal to 65,000; 

(d) carbon monoxide — 17 mg/m' (15 p.p.m.), 
eight-hour average; 

(e) ozone — 400 ug/m' (0.2 p.p.m.), one-hour 
average; 

(f) nitrogen dioxide — 1130 ug/m^ (0.6 p.p.m.), 
one-hour average; 282 ug/m^ (0.15 p.p.m.), 
24-hour average; 

(g) PMIO— 350 ug/m^, 24-hour average; 

and meteorological conditions are such that pollutant 
concentrations can be expected to remain at these 
levels for 12 or more hours or increase or, in t he case 
of for ozone, the situation is likely to r e o ccu r recur 
within the next 24-hours unless control actions are 
taken. 

(3) Warning. The warning level indicates that air 
quality is continuing to degrade and that additional 
abatement actions are necessary. The Director shall 
proclaim a warning when any one of the following 
levels is reached at any monitoring site: 

(a) sulfur dioxide - 1600 ug/m^ (0.6 p.p.m.), 
24 -hour average; 

(b) particulate — 625 ug/m\ 24-hour average; 

(c) sulfur dioxide and particulate combined - 
product of sulfur dioxide ug/m^, 24-hour 
average, and particulate ug/m', 24-hour 
average, equal to 261,000; 

(d) carbon monoxide — 34 mg/m' (30 p.p.m.), 
eight-hour average; 

(e) ozone - 800 ug/m^ (0.4 p.p.m.), one -hour 
average; 

(0 nitrogen dioxide - 2260 ug/m^ (1.2 p.p.m.), 
one-hour average; 565 ug/m^ (0.3 p.p.m.), 
24-hour average; 
(g) PMIO— 420 ug/m'; 24-hour average; 
and meteorological conditions are such that pollutant 
concentrations can be expected to remain at these 
levels for 12 or more hours or increase or, in the case 
of for ozone, the situation is likely to r eoccu r recur 
within the next 24 hours unless control actions are 
taken. 

(4) Emergency. The emergency level indicates that air 
quality is continuing to degrade to a level that should 
never be reached and that the most stringent control 
actions are necessary. The Secretary of the 
Department of Environment. Health, and Natural 
Resources Natu r al — Resources — and — Community 
D e v e lopm e n t with the concurrence of the Governor 
shall declare an emergency when any one of the 
following levels is reached at any monitoring site: 

(a) sulfur dioxide — 2100 ug/m' (0.8 p.p.m.), 
24-hour average; 

(b) particulate - 875 ug/m\ 24-hour average; 

(c) sulfur dioxide and particulate combined — 
product of sulfur dioxide ug/m\ 24-hour 



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average, and particulate ug/m , 24-hour 
average, equal to 393,000; 

(d) carbon monoxide — 46 mglm" (40 p. p.m.), 
eight-hour average; 

(e) ozone — 1000 ug/m'' (0.5 p. p.m.), one-hour 
average; 

(f) nitrogen dioxide - 3(X)0 ug/m-* ( 1 .6 p. p.m.), 
one-hour average; 750 ug/m^ (0.4 p. p.m.), 
24 -hour average; 

(g) PM 10—500 ug/m', 24-hour average. 

(5) Termination. Once declared any level reached by 
application of these criteria will remain in effect until 
the criteria for that level are no longer met. At that 
time the next lower level will be assumed. 

Authority G.S. 143-215. 3(a)(1); 143-215. 3(a)(12). 

SECTION .0500 - EMISSION CONTROL 
STANDARDS 

.0531 SOURCES IN NONATTAINMENT AREAS 

(a) Applicability. 

(1) Ozone Nonattainment Areas. This Rule applies to 
major stationary sources and major modifications of 
sources of volatile organic compounds or nitrogen 
oxides for which construction commences after the 
area in which the source is located is designated in 
acco r dance with according to Part (A) or (B) of this 
Subparagraph and which that are located in: 

(A) areas designated in 40 CFR 81.334 as 
nonattainment for ozone, or 

(B) any of the following areas and in that area 
only when the Director notices in the North 
Carolina Register that the area is in violation 
of the ambient air quality standard for ozone: 

(i) Charlotte/Gastonia, consisting of 
Mecklenburg and Gaston Counties; 
with the exception allowed under 
Paragraph (k) of this Rule; 
(ii) Green sboro/Winston-Salem/High 
Point, consisting of Davidson, Forsyth, 
and Guilford Counties and that part of 
Davie County bounded by the Yadkin 
River, Dutchmans Creek, North 
Carolina Highway 801, Fulton Creek 
and back to Yadkin River; or 
(iii) Raleigh/Durham, consisting of Durham 
and Wake Counties and Dutchville 
Township in Granville County. 
Violations of the ambient air quality standard for 
ozone shall be determined in accordance with 
accordmg to 40 CFR 50.9. 

(2) Carbon Monoxide Nonattainment Areas. This Rule 
applies to major stationary sources and major 
modifications of sources of carbon monoxide located 
in areas designated in 40 CFR 81.334 as 
nonattainment for carbon monoxide and for which 



construction commences after the area in which the 
source is located is listed in 40 CFR 81.334 as 
nonattainment for carbon monoxide. 
(3) Redesignation to Attainment. If any county or part 
of a county to which this Rule applies is later 
designated in 40 CFR 81.334 as attainment for ozone 
or carbon monoxide, all sources in that county 
subject to this Rule before the redesignation date 
shall continue to comply with this Rule. 

(b) For the purpose of this Rule the definitions contained in 
40 CFR 51.165(a)(1) and 40 CFR 51.301 shall apply. The 
reasonable period specified in 40 CFR 51.165(a)(l)(vi)(C)(l) 
shall be seven years. 

(c) This Rule is not applicable to: 

(1) complex sources of air pollution that are regulated 
only under Section .0800 of this Subchapter and not 
under any other rule in this Subchapter; 

(2) emission of pollutants at the new major stationary 
source or major modification located in the 
nonattainment area which that are pollutants other 
than the pollutant or pollutants for which the area is 
nonattainment. (A major stationary source or major 
modification that is major for volatile organic 
compounds or nitrogen oxides is also major for 
ozone.); 

(3) emission of pollutants for which the source or 
modification is not major; 

(4) a new source or modification which that qualifies for 
exemption under the provision of 40 CFR 
51.165(a)(4); and 

(5) emission of compounds that are listed under 40 CFR 
51.100(s) as having been determined to have 
negligible photochemical reactivity except carbon 
monoxide. 

(d) 15A NCAC 2Q .0102 and .0302 are not applicable to 
any source to which this Rule applies. The owner or operator 
of the source shall apply for and receive a permit as required in 
15A NCAC 2Q .0300 or .0500. 

(e) To issue a permit to a source to which this Rule applies, 
the Director shall determine that the source will meet the 
following requirements; 

(1) The source will emit the nonattainment pollutant at 
a rate no more than the lowest achievable emission 
rate; 

(2) The owner or operator of the proposed new or 
modified source has demonstrated that all major 
stationary sources in the State which that are owned 
or operated by this person (or any entity controlling, 
controlled by, or under common control with this 
person) are subject to emission limitations and are in 
compliance, or on a schedule for compliance which 
that is federally enforceable or contained in a court 
decree, with all applicable emission limitations and 
standards of this Subchapter which that EPA has 
authority to approve as elements of the North 
Carolina State Implementation Plan for Air Quality; 

(3) The source will obtain sufficient emission reductions 



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of the nonattainment pollutant from other sources in 

the nonattainment area so that the emissions from the 

new major source and associated new minor sources 

will be less than the emissions reductions by a ratio 

of at least 1.00 to 1.15 for volatile organic 

compounds and nitrogen oxides and by a ratio of 

lesser than one to one for carbon monoxide. The 

baseline for this emission offset shall be the actual 

emissions of the source from which offset credit is 

obtained. Emission reductions shall not include any 

reductions resulting from compliance (or scheduled 

compliance) with applicable rules in effect p rio r to 

before the application. The difference between the 

emissions from the new major source and associated 

new minor sources of carbon monoxide and the 

emission reductions shall be sufficient to represent 

reasonable further progress toward attaining the 

Ambient Air Quality Standards. The emissions 

reduction credits shall also conform to the provisions 

of 40 CFR 5 1 . 165(a)(3)(ii)(A) through (G); and 

(4) The North Carolina State Implementation Plan for 

Air Quality is being carried out for the nonattainment 

area in which the proposed source is located. 

(0 When a particular source or modification becomes a 

major stationary source or major modification solely by virtue 

of a relaxation in any enforceable limitation established after 

August 7, 1980, on the capacity of the source or modification 

to emit a pollutant, such as a restriction on hours of operation, 

then the provisions of this Rule shall apply to the source or 

modification as though construction had not yet begun on the 

source or modification. 

(g) To issue a permit to a source of a nonattainment 
pollutant, the Director shall determine, in addition to the other 
requirements of this Rule, that an analysis (produced by the 
permit applicant) of alternative sites, sizes, production 
processes, and environmental control techniques for source 
demonstrates that the benefits of the source significantly 
outweigh the environmental and social costs imposed as a result 
of its location, construction, or modification. 

(h) Approval of an application with r egard to regarding the 
requirements of this Rule shall not relieve the owner or 
operator of the responsibility to comply fully with applicable 
provisions of other rules of this Chapter and any other 
requirements under local, state, or federal law. 

(i) When a source or modification subject to this Rule may 
affect the visibility of a Class I area named in Paragraph (c) of 
Rule .0530 of this Section, the following procedures shall be 
followed: 

(1) The owner or operator of the source shall provide an 
analysis of the impairment to visibility that would 
occur as — a — r esul t because of the source or 
modification and general commercial, industrial and 
other growth associated with the source or 
modification; 

(2) The Director shall provide written notification to all 
affected Federal Land Managers within 30 days of 
receiving the permit application or within 30 days of 



receiving advance notification of an application. The 
notification shall be at least 30 days pr i o r to before 
the publication of the notice for public comment on 
the application. The notification shall include a copy 
of all information relevant to the permit application 
including an analysis provided by the source of the 
potential impact of the proposed source on visibility; 

(3) The Director shall consider any analysis concerning 
visibility impairment performed by the Federal Land 
Manager if the analysis is received within 30 days of 
notification. If the Director finds that the analysis of 
the Federal Land Manager fails to demonstrate to his 
satisfaction that an adverse impact on visibility will 
result in the Class I area, the Director shall provide 
in the notice of public hearing on the application, an 
explanation of his decision or notice as-to where the 
explanation can be obtained; 

(4) The Director shall only issue permits to those sources 
whose emissions will be consistent with making 
reasonable progress towards toward the national goal 
of preventing any future, and remedying any 
existing, impairment of visibility in mandatory Class 
I areas when the impairment results from man-made 
manmade air pollution. In making the decision to 
issue a permit, the Director shall consider the cost of 
compliance, the time necessary for compliance, the 
energy and nonair quality environmental impacts of 
compliance, and the useful life of the source; and 

(5) The Director may require monitoring of visibility in 
or around any Class I area by the proposed new 
source or modification when the visibility impact 
analysis indicates possible visibility impairment. 

The requirements of this Paragraph shall not apply to nonprofit 
health or nonprofit educational institutions. 

(j) The version of the Code of Federal Regulations 
incorporated in this Rule is that as of January 1 , 1989, and does 
not include any subsequent amendments or editions to the 
referenced material. 

(k) Paragraphs (e) and (g) of this Rule shall not apply to a 
new major stationary source or a major modification of a source 
of volatile organic compounds or nitrogen oxides for which 
construction commences after the area in which the source is 
located has been designated in accordance with according to 
Part (a)(1)(B) of this Rule and before the area is designated in 
40 CFR 81.334 as nonattainment for ozone if the owner or 
operator of the source demonstrates, using the Urban Airshed 
Model (UAM), that the new source or modification will not 
contribute to or cause a violation. The model used shall be that 
maintained by the Division. Division of Envi r onme nt al 
Managemen t . The Division of Envi ro nmental Managemen t 
shall only run the model after the permit application has been 
submitted. The permit application shall be incomplete until the 
modeling analysis is completed. The owner or operator of the 
source shall apply such degree of control and obtain such 
offsets necessary to demonstrate the new source or modified 
source will not cause or contribute to a violation. 



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PROPOSED RULES 



Authority G.S. 143-215. 3(a)(1): 143-215. 107(a)(5); 143- 
215.108(b). 

SECTION .0900 - VOLATILE ORGANIC 
COMPOUNDS 

.0953 VAPOR RETURN PIPING FOR 
STAGE II VAPOR RECOVERY 

(a) Applicability. This Rule applies to any facility located 
in Davidson, Durham, Forsyth, Gaston, Guilford, 
Mecklenburg, or Wake counties or the Dutchville Township in 
Granville county or that portion of Davie c o unty County that 
is bounded by the Yadkin River, Dutchman's Creek, NC 
Highway 801, Fulton Creek and back to the Yadkin River: 

(1) that is built after June 30, 1994, or 

(2) whose tanks are replaced or removed for upgrades or 
repairs after June 30, 1994. 

When a new tank is added, the new tank shall comply with this 
Rule. 

(b) Exemptions. The burden of proof of eligibility for 
exemption from this Rule is on the owner or operator of the 
facility. Persons seeking an exemption from this Rule shall 
maintain adequate records of throughput and shall furnish these 
records to the Director upon request. These records shall be 
maintained on file for three years. The following facilities are 
exempt from this Rule based upon the previous two years 
records; 

(1) any facility which that dispenses less than 10,000 
gallons of gasoline per calendar month; 

(2) any facility which that dispenses less than 50,000 
gallons of gasoline per calendar month and is an 
independent small business marketer of gasoline; 

(3) any facility which that dispenses gasoline exclusively 
for refueling marine vehicles, aircraft, farm 
equipment, and emergency vehicles; or 

(4) any tanks used exclusively to test the fuel dispensing 
meters. 

Any facility that ever exceeds the exemptions given in 
Subparagraphs (1), (2), (3), or (4) of this Paragraph shall be 
subject to all of the provisions of this Rule in accordance with 
according to the schedule given in Paragraph (e) of this Rule, 
and shall remain subject to these provisions even if the facility's 
later operation meets the exemption requirements. 

(c) Definitions. For the purpose of this Rule, the following 
definitions apply: 

(1) "Affected Facility" means any gasoline service 
station or gasoline dispensing facility subject to the 
requirements of this Rule. 

(2) "CARB" means the California Air Resources Board. 

(3) "Certified Stage II Vapor Recovery System" means 
any system certified by the California Air Resources 
Board as having a vapor recovery or removal 
efficiency of at least 95 percent by weight. 

(4) "Facility" means any gasoline service station or 
gasoline dispensing facility. 

(5) "ISBM" means independent small business marketer. 

(6) "Independent Small Business Marketer of Gasoline" 



means a facility that qualifies under Section 324 of 
the Federal Clean Air Act. 

(7) "Operator" means any person who leases, operates, 
controls, or supervises a facility at which gasoline is 
dispensed. 

(8) "Owner" means any person who has legal or 
equitable title to the gasoline storage tank at a 
facility. 

(9) "Stage II Vapor Recovery" means the control of 
gasoline vapor at the vehicle fill-pipe, where the 
vapors are captured and returned to a vapor-tight 
underground storage tank or are captured and 
destroyed. 

(10) "Throughput" means the amount of gasoline 
dispensed at a facility during any calendar month. 

(11) "Vapor Recovery Dispenser Riser" means piping 
rising from the vapor recovery piping to the 
dispenser. 

(12) "Vapor Recovery Piping" means vapor return piping 
connecting the storage tank(s) with the vapor 
recovery dispenser riser(s). 

(d) Requirements. Affected facilities shall install the 
necessary piping for fumre installation of CARB certified Stage 
II vapor recovery system. The vapor piping shall extend from 
the tanks to the pumps. The vapor piping shall be installed in 
accordance with the following requirements: 

(1) Gasoline vapors shall be: 

(A) transferred from each gasoline dispenser to the 
underground storage tank individually, or 

(B) manifolded through a common header from 
which a single return line is cormected through 
another manifold to all of the underground 
tanks. 

Each vapor return pipe shall allow the transfer of 
gasoline vapors to the tank from which the liquid 
gasoline is being drawn; 

(2) Pipe diameter shall meet manufacturer's 
specifications. If the manufacturer does not specify 
diameters, the following minimum pipe diameters 
apply. If the manufacturer only specifies diameters 
for part of the system, the following diameters apply 
for the pipe(s) not specified. All fittings, 
coimectors, and joints shall have an inside diameter 
equal to the inside diameter of the pipe to which it is 
a tt ached to. attached. The following diameters are 
specified for the number of nozzles which that may 
be operated at the same time; 

(A) Vapor Recovery Dispenser Risers 

(i) 3/4" for vapor recovery dispenser risers 

retummg vapors from 1 nozzle; or 
(ii) 1 " for vapor recovery dispenser risers 
returning vapors from 2 nozzles; 

(B) Vapor Recovery Piping 

(i) Two inches for one, two, or three 

nozzles; 
(ii) Two and one half inches for four or 
five nozzles; 



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(iii) Three inches for six, seven, eight, or 

nine nozzles; 
(iv) Three and one half inches for 10, 11, 

or 12 nozzles; or 
(v) Four inches for more than 12 nozzles; 

(3) All piping and fittings shall be installed in 
accordance with manufacturer's instructions and 
specifications. Metal pipe shall be minimum 
schedule 40 welded or seamless steel per ASTM A- 
53, "Specification for Pipe, Steel, Black and Hot- 
Dipped, Zinc-Coated Welded and Seamless Pipe". 
Fittings shall be 150 pounds cold water screwed 
malleable iron. Pipe and fittings shall be galvanized 
and pipe threads shall be zinc-coated. Nonmetallic 
pipes and fittings shall be U/L listed under 
nonmetallic primary pipes and fittings for 
underground flammable liquids (gas and oil 
equipment directory); 

(4) Each vapor return pipe shall slope towards toward 
the storage tank with a minimum grade of 1/4 inches 
per foot. No low points or sags shall exist along the 
return piping; 

(5) All vapor return and vent piping shall be provided 
with flexible joints or swing joints at each tank 
connection and at the base of the vent pipe riser 
where it fastens to a building or other structure; 

(6) All vapor return pipe-trenching shall be compacted to 
90 percent of the standard proctor according to 
ASTM D-698 "Laboratory Compaction 
Characteristics of Soil Using Standard Effort" of the 
area soil before the pipes are installed and back-filled 
with sand or other material approved by the pipe 
manufacturer at least six inches below and above the 
piping; 

(7) The pipes shall not be driven over or in any other 
way crushed pr i or t o before paving or surfacing; 

(8) The vapor return piping or manifolded piping on a 
vacuum assisted system shall enter a separate opening 
to the tank from that connected to the vent pipe or 
the Stage I piping; 

(9) All vapor return piping shall be tagged at the 
termination point recording the function of the 
piping. In addition, a record of the installation of 
the Stage II vapor return piping shall be kept in the 
facility; 

(10) Vent piping shall be constructed of materials in 
accordance with Subparagraph (3) of this Paragraph; 

(11) All vent pipes shall be a minimum of two inches 
inside diameter or meet the local Fire Codes; and 

(12) All vent pipes shall slope towards toward the 
underground storage tank with a grade of at least 1 /4 
inch per linear foot. 

(e) Compliance Schedule. Compliance under Paragraph (d) 
of this Rule by the affected facility shall coincide with the 
completion of the tank installation or repair. Facilities that lose 
their exemption under Paragraph (b) of this Rule shall comply 



with this Rule within 18 months after the day the owner or 
operator of the facility has been notified by the Director that his 
exemption under Paragraph (b) of this Rule has been revoked. 

(f) Testing Requirements. 

(1) Within 30 days after installation of the vapor return 
piping, the owner or operator of the facility shall 
submit reports of the following tests to be completed 
as described in EPA-450/3-91-022b: 

(A) Bay Area Source Test Procedure ST-30, Leak 
Test Procedure, or San Diego Test Procedure 
TP-91-1, Pressure Decay /Leak Test 
Procedure, and 

(B) Bay Area Source Test Procedure ST-27, 
Dynamic Back Pressure, or San Diego Test 
Procedure TP-91-2, Pressure Drop vs 
Flow/Liquid Blockage Test Procedure. 

(2) Testing shall be in accordance with Rule .0912 of 
this Section. 

(3) The owner or operator of the facility shall notify the 
Regional Office Supervisor by telephone at least five 
business days before back-filling the trenches and at 
least 10 business days before the tests given in 
Subparagraph (1) of this Paragraph are to be 
performed to allow inspection by the Division. The 
owner or operator may commence back-filling five 
days after notification has been given to the Division. 

(4) The owner or operator of the facility and the test 
contractor shall report all test failures to the Regional 
Office Supervisor within 24 hours of the failure. 

(5) The Director may require the owner or operator of 
the facility to perform any of the tests in 
Subparagraph ( 1 ) of this Paragraph if there are any 
modifications or repairs. 

(6) Where the Division conducts a test on the vapor 
control system, it shall be without compensating the 
owner or operator of the facility for any lost 
revenues incurred due to the testing procedure. 

(g) Referenced documents. 

ti) EPA-450/3-91-022b, "Technical Guidance - Stage II 
Vapor Recovery Systems for Control of Vehicle 
Refueling Emissions at Gasoline Dispensing 
Facilities, Volume II: Appendices", November 1991, 
cited in this Rule is hereby incorporated by reference 
and does not include subsequent amendments or 
editions. A copy of this document is available for 
inspection at the Regional Offices of the North 
Carolina Department of Environment, Health, and 
Natural Resources (Addresses are given in Rule 
.0103 of this Subchapter). Copies of this document 
may be obtained through the Library Services Office 
(MD-35), U. S. Environmental Protection Agency, 
Research Triangle Park or National Technical 
Information Services (NTIS), 5285 Pon Royal Road, 
Springfield V A 22161. The NTIS number for this 
document is PB-92 132851, and the cost is fifty-two 
dollars ($52.00). 

f2) The Ame r ican Socie t y fo r Tes t ing and Ma t erials 



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277 



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(ASTM) spacificadoH and test me t hods ci t ed in t his 
Rul e art hereby incorporated by r ef er ence including 
any subsequent amendments and edi t ions. A copy of 
the ASTM specificati o n and t es t meth o d can be 
ob t ained from the Ai r Quali t y Section. Division of 
Environmen t al — Managemen t . — PrO^ — Bor — 2 9 525. 
Raleigh. North Car o lina 2762G. a t no cos t . 

Auihoriry G.S. 143-215. 3(a)(1): 143-215. 107(a); 150B-21.6. 

SECTION .1000 - MOTOR VEfflCLE 
EMISSION CONTROLS STANDARDS 

.1005 MEASUREMENT AND ENFORCEMENT 

The methods and equipment for measuring the exhaust 
emissions are specified in Appendix G of the North Carolina 
State Implementation Plan for Air Quality as set forth by the 
North Carolina Division of Air Quality. Environmental 
Management. The methods for enforcing the standards of this 
Section are contained in the "Safety. Emissions, Windshield 
Procedures Manual" as set forth by the North Carolina Division 
of Motor Vehicles. The docunwn t s adopted by refe r ence in this 
Sec t ion shall au t omatically include any — later amendmen t s 
the r et o as allowed by G.S. 150D-14(c). These two documents 
are herebv incorporated by reference and include subsequent 
amendments or editions. Copies of these documents are 
available for inspection at the Division of Air Quality. 2728 
Capital Boulevard. Raleigh. North Carolina. Copies of these 
documents may be purchased from the Air Quality Division. R 
O. Box 29580. Raleigh. North Carolina 27626-0580 at a price 
of twenty cents ($0.20) per page. 

Authority G.S. 20-128. 2(a); 143-215. 3(a)(1); 143- 
215.107(a)(3); 143-21 5. 107(a)(6); 143-215. 107(a)(7); 150B- 
14(c). 

SECTION .1100 - CONTROL OF TOXIC 
AIR POLLUTANTS 

. 1 1 07 MULTIPLE FACILITIES 

(a) If an acceptable ambient level in Rule .1104 of this 
Section is exceeded because of emissions of two or more 
facilities and if public exposure is such that the commission has 
evidence that human health may be adversely affected, then the 
Commission commission shall require the subject facilities to 
apply addition controls or to otherwise reduce emissions. The 
type of evidence that the Commission commission shall 
consider shall include one or more of the following: 

(1) emission inventory, 

(2) ambient monitoring, 

(3) modeling, or 

(4) epidemiological study. 

(b) The allocation of the additional reductions shall be based 
on the relative contributions to the pollutant concentrations 
unless the owners or operators agree otherwise. 

(c) The owner or operator of a facility shall not be required 
to conduct the multi-facility ambient impact analysis described 



in Paragraph (a) of this Rule. This type of analysis shall be 
done by the Division of Environmen t al Management. Air 
Quality. In performing its analysis, the Division of 
Envi ro nmen t al Managemen t shall: 

(1) develop a modeling plan that includes the elements 
set out in Paragraph (f) of Rule . 1 106 of this Section; 

(2) use for the source modeling parameters, the modeling 
parameters used by the owner or operator of the 
source in his modeling demonstration, or if a 
modeling demonstration has not been done or if a 
needed parameter has not been used in the modeling 
demonstration, parameters contained in, or derived 
from data contained in, the source's permit; 

(3) use a model allowed by Paragraph (c) of Rule . 1 106 
of this Section; 

(4) model for cavity effects and comply with the 
modeling requirements for stack height set out in 
Rule .0533 of this Sec t i o n. Section: 

(5) use the time periods required by Paragraph (d) of 
Rule . 1 106 of this Section; and 

(6) only consider impacts of a facility's emissions 
beyond the premises of that facility. 

AuthontyG.S. 143-215. 3(a)(1); 143-215. 107(a)(3). (5); 143B- 
282. 

SECTION .1200 - CONTROL OF EMISSIONS 
FROM INCINERATORS 

.1204 REPORTING AND RECORDKEEPEVG 

(a) The reporting and recordkeeping requirements of Rule 
.1105 of this Subchapter shall apply to all incinerators in 
addition to any reporting and recordkeeping requirements that 
may be contained in any other rules. 

(b) The owner or operator of an incinerator, except an 
incinerator meeting the requirements of 15A NCAC 2D .1201 
(e), shall maintain and operate a continuous temperature 
monitoring measuring and recording device for the primary 
chamber and, where there is a secondary chamber, for the 
secondary chamber. The Director may require a temperature 
monitoring device for incinerators meeting the requirements of 
15A NCAC 2D .1201 (e). The owner or operator of an 
incinerator that has installed air pollution abatement equipment 
to reduce emissions of hydrogen chloride shall install, operate, 
and maintain continuous monitoring equipment to measure pH 
for wet scrubber systems and rate of alkaline injection for dry 
scrubber systems. The Director shall require the owner or 
operator of an incinerator with a permitted charge rate of 750 
pounds per hour or more to install, operate, and maintain 
continuous monitors for oxygen or for carbon monoxide or 
both as necessary to determine proper operation of the 
incinerator. The Director may require the owner or operator of 
an incinerator with a permitted charge rate of less than 750 
pounds per hour to install, operate, and maintain monitors for 
oxygen or for carbon monoxide or both as necessary to 
determine proper operation of the incinerator. 

(c) In addition to the requirements of Paragraphs (a) and (b) 



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of this Rule, the owner or operator of a sewage sludge 
incinerator shall: 

(1) install, operate, and maintain, for each incinerator, 
continuous emission monitors to determine the 
following: 

(A^ mercury emissi o ns by use of Method 105 of 

40 CFR Part 61, A pp endix D, whe r e 
applicable to 40 CFR 01.55(a) ; 

f&XA) total hydrocarbon concentration of the 
incinerator stack exit gas in accordance with 
40 CFR 503.45(a) unless the requirements for 
continuously monitoring carbon monoxide as 
provided in 40 CFR 503.40(c) are satisfied; 

f€^(B) oxygen concentration of the incinerator stack 
exit gas; and 

(©)£Q moisture content of the incinerator stack exit 
gas; 

(2) monitor the concentrations of beryllium and mercury 
from the sludge fed to the incinerator at least as 
frequently as required under Rule .1110 of this 
Subchapter but in no case less than once per year; 

(3) monitor the concentrations of arsenic, cadmium, 
chromium, lead, and nickel in the sewage sludge fed 
to the incinerator at least as frequently as required 
under 40 CFR 503.46(a)(2) and (3); 

(4) determine mercury emissions by use of Method 105 
of 40 CFR Part 61. Appendix B. where applicable to 
40 CFR 61.55(a): 

W(5) maintain records of all material required under Rule 

.1203 and . 1204 of this Section in accordance with 

40 CFR 503.47; and 

f5^(6) for class I sludge management facilities (as defined in 

40 CFR 503.9), POTWs (as defined in 40 CFR 

501.2) with a design flow rate equal to or greater 

than one million gallons per day, and POTWs that 

serve a population of 10,000 people or greater, 

submit the information recorded in Subparagraph 

(c)(4) of this Rule to the Director on or before 

February 19 of each year. 

(d) All monitoring devices and systems required by this Rule 

shall be subject to a quality assurance program approved by the 

Director. Such quality assurance program shall include 

procedures and frequencies for calibration, standards 

traceability, operational checks, maintenance, auditing, data 

validation, and a schedule for implementing the quality 

assurance program. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(4). (5). 

.1206 OPERATIONAL STANDARDS 

(a) The operational standards in this Rule do not apply to 
incinerators where operational standards in Rule .0524, .1110, 
or . 1 1 1 1 of this Subchapter apply. 

(b) Hazardous waste incinerators. Hazardous waste 
incmerators shall comply with 15 A NCAC 13 A .0001 through 
.0014, which are administered and enforced by the Division of 
Solid Waste Management. 



(c) Medical waste incinerators. Medical waste incinerators 
shall meet the following requirements: 

ift:) — The pr imary chamber t e mpera t ure shall be a t l e as t 

(2)(JQ The secondary chamber temperature shall be at least 

1800°F. 
B^(2) Gases generated by the combustion shall be subjected 
to a minimum temperature of 1800°F for a period of 
not less than one second. 
Medical waste incinerators shall comply with 15A NCAC 138 
.1207(3) and any other pertinent parts of 15A NCAC 138 
. 1200, which are administered and enforced by the Division of 
Solid Waste Management. 

(d) Municipal solid waste incinerators. Municipal solid 
waste incinerators shall meet the following requirements: 

(1) The concentration of carbon monoxide at the 
combustor outlet shall not exceed the concentration 
in Table 1 of Paragraph (a) of 40 CFR 60.36a. The 
incinerator technology named in this table is defined 
under 40 CFR 60.51a. 

(2) The temperature of the exhaust gas entering the 
particulate matter control device shall not exceed 
450^. 

(3) Gases generated by the combustion shall be subjected 
to a minimum temperature of 1 800°F for a period of 
not less than one second. 

(e) Sludge incinerators. The combustion temperature in a 
sludge incinerator shall not be less than 1200°F. The maximum 
oxygen content of the exit gas from a sludge incinerator stack 
shall be: 

(1) 12 percent (dry basis) for a multiple hearth sludge 
incinerator, 

(2) seven percent (dry basis) for a fluidized bed sludge 
incinerator, 

(3) nine percent (dry basis) for an electric sludge 
incinerator, and 

(4) 12 percent (dry basis) for a rotary kiln sludge 
incinerator. 

(f) Sewage sludge incinerators. 

(1) The maximum combustion temperature for a sewage 
sludge incinerator shall be placed in the permit and 
based on information obtained during the 
performance test of the sewage sludge incinerator to 
determine pollutant control efficiencies. 

(2) The values for the operational parameters for the 
sewage sludge incinerator air pollution control 
device(s) shall be placed in the permit and be based 
on information obtained during the performance test 
of the sewage sludge incinerator to determine 
pollutant control efficiencies. 

(3) The monthly average concentration for total 
hydrocarbons, or carbon monoxide as provided in 40 
CFR 503.40(c), in the exit gas from a sewage sludge 
incinerator stack, corrected to zero percent moisture 
and seven percent oxygen as specified in 40 CFR 
503.44, shall not exceed 100 pans per million on a 
volumetric basis using the continuous emission 



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279 



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monitor required in Subparagraph . 1204(c)(1) of this 
Subchapter. 

(g) Crematory incinerators. Gases generated by the 
combustion shall be subjected to a minimum temperature of 
16(X)°F for a period of not less than one second. 

(h) Other incinerators. All incinerators not covered under 
Paragraphs (a) through (g) of this Rule shall meet the following 
requirement: Gases generated by the combustion shall be 
subjected to a minimum temperature of 1800°F for a period of 
not less than one second. The temperature of 1800°F shall be 
maintained at least 55 minutes out of each 60-minute period, 
but at no time shall the temperature go below 1600°F. 

(i) Except during start-up where the procedure has been 
approved in accordance with Rule .0535(g) of this Subchapter, 
waste material shall not be loaded into any incinerators covered 
under Paragraphs (c), (d), (g), or (h) when the temperature is 
below the minimum required temperature. Start-up procedures 
may be determined on a case -by-case basis in accordance with 
Rule .0535(g) of this Subchapter. Incinerators covered under 
Paragraphs (c), (d), (g), or (h) shall have automatic auxiliary 
burners that are capable of maintaining the required minimum 
temperature in the secondary chamber excluding the heat 
content of the wastes. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

SECTION .1300 - OXYGENATED 
GASOLINE STANDARD 

. 1305 MEASUREMENT AND ENFORCEMENT 

(a) Gasoline samples shall be taken and handled by methods 
approved by the Gasoline and Oil Inspection Board. 

(b) Gasoline samples shall be analyzed by the American 
Society for Testing and Materials (ASTM) standard test 
method, designation D 4815-89 or by other methods approved 
by the Gasoline and Oil Inspection Board and the United States 
Environmental Protection Agency. 

(c) Enforcement shall be in accordance with procedures 
adopted by the Gasoline and Oil Inspection Board in 2 NCAC 
42 Section .0100. 

i&i — Th e ASTM tes t me t h o d ci t ed in this Rul e is h ere by 
inco rp o r a t ed — by — r efe r ence — including — any — subs e quent 
amendments and edi t ions. A c o py of t he ASTM t es t method 
c an be o b t ained f ro m the Ai r Quali t y Section. Division o f 
Envn ' onmen t al Matiagem e n t , P. O. B o x 2 9 525, Raleigh, No r th 
Carolina 27626, at no cos t . 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(7); 119-26; 
150B-21.6. 

SECTION .1500 - TRANSPORTATION 
CONFORMITY 

.1503 TRANSPORTATION CONFORNOTY 
DETERMINATION 

(a) Conformity analyses, determinations, and 

redeterminations for transportation plans, transportation 



improvement programs, FHWA/FTA projects, and State or 
local projects shall be made according to the requirements of 40 
CFR 51.400 and shall comply with the applicable requirements 
of 40 CFR 51 .456 and 51.458. For the purposes of this Rule, 
State or local projects shall be subject to the same requirements 
under 40 CFR Pan 51 as FHWA/FTA projects. 

(b) Before making a conformity determination, the 
metropolitan plaiming organizations, local transportation 
departments. North Carolina Department of Transportation, 
United States Department of Transportation, the Division of 
Air Ouality. Envir o nmental Management, local air pollution 
control agencies, and United States Environmental Protection 
Agency shall consult with each other on matters described in 40 
CFR 51.402(c). Consultation shall begin as early as possible 
in the development of the emissions analysis used to support a 
conformity determination. The agency that performs the 
emissions analysis shall make the analysis available to the 
Division of Air Oualitv Envi ro nmen t al Management and the 
general public for comments; at least two weeks shall be 
allowed for review and coimnent on the emissions analysis. 
The agency that performs the emissions analysis shall address 
all comments received and these comments and responses 
thereto shall be included in the final document. In the event 
that If the Division of Air Ouality Envir o nmental Managemen t 
disagrees with the resolution of its coiranents, the conflict may 
be escalated to the Governor within 14 days and shall be 
resolved in accordance with 40 CFR 51.402(d). The 14-day 
appeal period shall begin when the North Carolina Department 
of Transportation or the metropolitan planning organization 
notifies the Director in writing of the resolution of the 
comments. Any consultation undertaken after the conformity 
determination is made shall include the Division of Air Ouality. 
Envi ro nmen t al Managemen t . 

(c) The agency that performs the conformity analysis shall 
notify the Division of Air Ouality Envi ro nmental Management 
of: 

(1) any changes in planning or analysis assumptions 
(including land use and vehicle miles traveled 
(VMT) forecasts), and 

(2) any revisions to transportation plans or 
transportation improvement plans that add, delete, 
or change projects that require a new emissions 
analysis (including design scope and dates). 

The agency that performs the conformity analysis shall allow 
the Division of Air (Duality Envi r omnen t al Managemen t at least 
two weeks to review and comment on the proposed change. 
Comments made by the Division of Air Ouality Envi ro nmental 
Managemen t and responses thereto made by the agency shall 
become part of the final planning document. 

(d) Transportation plans shall satisfy the requirements of 40 
CFR 51.404. Transportation plans and transportation 
improvement programs shall satisfy the fiscal constraints 
specified in 40 CFR 5 1 .408. Transportation plans, programs, 
and FHWA/FTA projects shall satisfy the applicable 
requirements of 40 CFR 51.410 through 51.448. 

(e) No recipient of federal funds designated under Title 23 
U.S.C. or the Federal Transit Act shall adopt or approve, nor 



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any other person construct, a regionally significant highway or 
transit project, regardless of fiinding source, unless there is a 
currently conforming transportation plan and transportation 
improvement program consistent with the requirements of 40 
CFR 51.420 and the project conforms with the applicable 
implementation plan consistent with the requirements of 40 
CFR 51.450. 

(f) The degree of specificity required in a transportation plan 
and the specific travel network assumed for air quality 
modeling shall not preclude the consideration of alternatives in 
the National Environmental Policy Act of 1969 process, in 
accordance with 40 CFR 51.406 

(g) When assisting or approving any action with air quality- 
related consequence, the Federal Highway Administration and 
the Federal Transit Administration of the Department of 
Transportation shall give priority to the implementation of 
those transportation portions of an applicable implementation 
plan prepared to attain and maintain the national ambient air 
quality standards. This priority shall be consistent with 
statutory requirements for allocation of funds among states or 
other jurisdictions. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(10). 

SECTION .1600 - GENERAL CONFORMITY 

.1603 GENERAL CONFORMFFY 
DETERMINATION 

(a) The appropriate federal agency shall make a determination 
that a federal action conforms with the maintenance plans for 
the areas identified in Rule .1601 of this Section in accordance 
with the requirements of this Section before the action is taken 
with the exceptions specified in 40 CFR 51.850(c). A 
conformity determination is required for each pollutant where 
the total of direct and indirect emissions caused by a federal 
action would equal or exceed 100 tons per year of carbon 
monoxide, nitrogen oxides, or volatile organic compounds, 
with the exceptions specified in 40 CFR 51.853(c), (d), or (e). 
The Division of Envi ro nmen t al Management shall provide 
technical assistance for the analysis necessary to determine the 
conformity of the federal action. 

(b) Notwithstanding any other requirements of this Section, 
actions specified by individual federal agencies that have met 
the requirements of 40 CFR 51.853(g) and (h) are presumed to 
conform, except as provided in 40 CFR 51 .853(j). Where 40 
CFR 51.853(j) is applicable, the requirements of 40 CFR 
51.853(j) shall apply. 

(c) Any federal department, agency, or instrumentality of the 
federal govenmient taking an action subject to this Section shall 
comply with the requirements of 40 CFR 51.854 through 
51.859. Any measures that are intended to mitigate air quality 
impacts shall comply with the requirements of 40 CFR 51 .860. 

(d) Notwithstanding any other requirement of this Section, 
when the total direct and indirect emissions of any pollutant 
from a federal action does not equal or exceed the rates 
specified in 40 CFR 51.853(b), but represents ten percent or 
more of the maintenance area's total emissions of that pollutant. 



the action is defined as a regionally significant action and the 
requirements of 40 CFR 51.850 and 51.855 through 51.860 
shall apply for the federal action. 

(e) Notwithstanding any provision of this Section, a 
determination that an action is in conformance with the 
applicable maintenance plan does not exempt the action from 
any other requirement of the applicable maintenance plan, the 
National Environmental Policy Act of 1969, as amended (42 
U.S.C. 4321 et seq.), or the federal Clean Air Act. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(10). 

SECTION .1700 - CONTROL OF 

EMISSIONS FROM MUNICIPAL 

SOLID WASTE LANDnLLS 

.1701 DEFINITIONS 

For the purpose of this Rule the definitions contained in 40 
CFR 60.751 shall apply. 

Authority G.S. 143-21 5. 3 (a)(1); 143-213. 

.1702 APPLICABILITY 

(a) All existing MSW landfills that meet the following 
conditions are subject to this Section: 

(1) The landfill has accepted waste at an^ time since 
November 8^ 1987. or has additional permitted 
capacity available for future waste deposition and has 
not been documented as being permanently closed: 
and 

(2) The landfill was in operation, or construction, 
reconstruction, or modification was commenced 
before May 30. 1991. 

(b) Physical or operational changes made to an existing 
MSW landfill solely to comply with an emission standard under 
this Section are not considered a modification or reconstruction, 
and do not subject an existing MSW landfill to the requirements 
of 40 CFR 60. Subpart WWW or 15A NCAC 2D .0524. 



Authority G. S. 
215. 107(a)(5). (10). 



143-213: 143-21 5. 3(a)(1); 143- 



.1703 EMISSION STANDARDS 

(a) Any MSW landfill subject to this Section and meeting the 
following two conditions shall meet the gas collection and 
control requirements of Paragraph (b) of this Rule: 

(1) The landfill has a design capacity greater than or 
equal to 2.75 million tons or 2^ million cubic 
meters. The owner or operator of the landfill may 
calculate the design capacity in either tons or cubic 
meters for comparison with the exemption values. 
Any density conversion shall be documented and 
submitted along with the initial reporting 
requirements of Rule . 1 708(a) of this Section: and 

(2) The landfill has a non-methane organic compound 
(NMOC) emission rate of 55 tons per year or more. 
The NMOC emission rate shall be calculated by 



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following the procedures outlined in 40 CFR 60.754. 
(h) Each owner or operator of a MSW landfill meeting the 
conditions of Paragraph (a) of thjs Rule shall: 

(1) submit 10 the Director a site-specific design plan for 
the gas collection and control system that meets the 
requirements of 40 CFR 60.752(b)(2)(il: 

(2) install a gas collection system that meets the 
requirements of 40 CFR 60.752(b)(2)(ii): and 

(3) control the collected emissions of MSW landfill gas 
through the use of one or more of the following 
control devices: 

(A) An open flare designed and operated in 
accordance with the parameters established in 
40 CFR 60.18: 

(B) A control system designed and operated to 
reduce N'MOC by 98 weight percent: or 

(C) An enclosed combustor designed and operated 
to reduce the outlet NMOC concentration to 
20 parts per million as hexane by volume, on 
a dry basis at three percent oxygen, or less. 

(c) The gas collection and control system required under 
Paragraph (b) of this Rule may be capped or removed provided 
that all the conditions of 40 CFR 60.752(b)(2)(v)(A). (B) and 
(C) are met. 

Authority G.S. 143-215. 3fa)(l): 143-215. 107(a)(5), (10). 

.1704 TEST METHODS AND PROCEDURES 

The MSW landfill N.MOC emission rate shall be calculated 
by following the procedures in 40 CFR 60.754. as applicable. 
in order to determine whether the landfill meets the conditions 
of Rule . 1703(a)(2> of this Section. 



Authority G.S. 
215. 107(a)(5). (10). 



143-215. 3(a)(1): 143-215.66: 143- 



.1705 OPERATIONAL STANDARDS 

The owner and operator of a MSW landfill required to install 
a landfill gas collection and control system to comply with Rule 
.1703(b) of this Section shall: 

(1) operate the collection system in accordance with 40 
CFR60.753(a>: 

(2) operate the collection system with negative pressure 
at each wellhead in accordance with 40 CFR 
60.753(b): 

(3) operate each interior wellhead in the collection 
system in accordance v.'ith 40 CFR 60.753(c): 

(4) operate the collection system so that the methane 
concentration is less than 500 parts per million above 
background at the surface of the landfill. To 
determine if this level is exceeded, the owner and 
operator shall follow the procedures gi\'en m 40 CFR 
60.753(d): 

(5) operate the collection system such that all collected 
gases are vented to a control SNStem designed and 
operated in compliance wit h Rule .1703(b)(3) of this 
Section. In the event that the gas collection and 



control system is inoperable, measures shall be taken 
as outlined in 40 CFR 60.753(e): 

(6) operate the control system at aH. times when the 
collected gas is routed to the control system: 

(7) take corrective action as specified in 40 CFR 
60.755(c) if monitoring demonstrates that the 
operation standards and requirements of Items (2), 
(3). and (4) of this Rule are not met. If the required 
corrective actions are taken, the emissions monitored 
shall not be considered a violation of the operational 
standards of this Rule. 

Authority- G.S. 143-215. 3(a)(1); 143-215. 107(a)(5), (10). 

.1706 COMPLIANCE PROVISIONS 

(a) Compliance with Rule .1703(b) of this Section shall be 
determined using the provisions of 40 CFR 60.755(a). 

(b> Compliance with Rule .1705(1) of this Section shall be 
determined using the provisions of 40 CFR 60.755(b). 

(c) Compliance with the surface methane operational 
standards of Rule .1705(4) of this Section shall be achieved 
using the procedures of 40 CFR 60.755(c) and (d). 

(d) The provisions of this Rule apply at all times, except 
dunng periods of start-up. shutdown, or malfunction, provided 
that the duration of start-up. shutdouTi. or malfunction shall not 
exceed five days for collection systems and shall not exceed one 
hour for treatment or control devices. 



I 



Authority G.S. 143-215. 3(a)(1): 
215. 107(a)(5). (10). 



143-215.66: 143- 



.1701 MONITORING PROVISIONS 

(a) The owner or operator of a MSW landfill who is required 
to comply with Rule .1703(b)(2) of this Section for an active 
gas collection system shall perform the monitoring 
requirements as outlined in 40 CFR 60.756(a). 

(b) The owner or operator of an MSW landfill seeking to 
comply with the provisions of Rule .1703(b)(3)(C) of this 
Section using an enclosed combustor shall perform the 
monitoring requirements as outlined in 40 CFR 60.756(b). 

(c) The owner or operator of an MSW landfill seeking to 
comply with the provisions of Rule .1703(b)(3)(A) of this 
Section using an open flare shall perform the monitoring 
requirements as outlined in 40 CFR 60.756(c). 

(d) The owner or operator of an MSW landfill seeking to 
comply with the provisions of Rule .1703(b)(3) of this Section 
using a device other than an open flare or an enclosed 
combustor shall comply with the provisions of 40 CFR 
60.756(d). 

(e) The owner or operator of an MSW landfill seeking to 
comph' with the provisions of Rule .1703(b)(3)(B) of this 
Section using an acti\e collection system or seeking to monitor 
alternative parameters to those required by Rule .1704 through 
. 1707 of this Section shall comply with the provisions of 40 
CFR 60.756(e). 

(f) The owner or operator of an MSW landfill seeking to 
comply with the provisions of Rule .1706(c) of this Section 



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ghall do so in accordance with 40 CFR 60.756(f). 



Authority G.S. 
215. 107(a)(5), (10). 



143-215. 3(a)(1); 143-215.66; 143- 



.1708 REPORTING REQUIREMENTS 

{ai The ovvTier or operator of a MSW landfill subject to this 
Rule according to Rule .1702 of this Section shall submit an 



initial design capacity report to the Director in accordance with 

the following: 

£JQ The initial design capacity report shall fulfill the 
requirements of the notification of the date 
construction is commenced as required under 40 CFR 
60.7(a)(1) and shall be submitted no later than the 
earliest of the day from the dates given in 40 CFR 
60.757(a)(n(i) through 40 CFR 60.757(a)(n(iii): 

(2) The initial design capacity report shall contain the 
information given in 40 CFR 60.757(a)(2)(i) and 40 
CFR 60.757(a)(2)(ii); and 

(3) An amended design capacity report shall be 
submitted to the Director in accordance with 40 CFR 
60.757(a)(3) whenever an increase in the design 
capacity of the landfill results in the design capacity 
of the landfill to exceed 2.5 million cubic meters or 
2.75 million tons. 

(b) The owner or operator of a MSW landfill subject to this 
Section shall submit a NMOC emission report to the Director 
initially and annually thereafter, except as provided for in 40 
CFR 60.757(b)(l)(ii) or (b)(3). The initial NMOC emission 
rate report shall be submitted within 90 days of the day waste 
acceptance commences and may be combined with the initial 
design capacity report required in Paragraph (a) of this Section. 
The NMOC emission rate report shall: 

(1) contain an annual or five-year estimate of the NMOC 
emission rate calculated using the formula and 
procedures provided in 40 CFR 60.754(a) or (b). as 
applicable: and 

(2) include all the data, calculations, sample reports and 
measurements used to estimate the annual or five- 
year emissions. 

(c) The owner or operator of a MSW landfill subject to Rule 
.1703(b) of this Section shall submit a collection and control 
system design plan to the Director within one year of the first 
report, required under Paragraph (b) of this Rule, in which the 
emission rate exceeds 55 tons p er year, except as provided for 
in 40 CFR 60.757(c)(1) and (2). 

(d) The owner or operator of a controlled landfill shall 
submit a closure report to the Director within 30 days of 
cessation of waste acceptance. If a closure report has been 
submitted to the Director, no additional waste shall be placed 
into the landfill without first filing a notification of 
modification as described under 40 CFR 60.14. The Director 
may request such additional information as may be necessary to 
verify that permanent closure of the MSW landfill has taken 
place in accordance with the requirements of 40 CFR 258.60. 

(e) The owner or operator of a controlled MSW landfill shall 
submit an equipment removal report 30 days prior to removal 



or cessation of operation of the control equipment according to 
Rule .1703(c) of this Section. The report shall contain the 
items listed in 40 CFR 60.757(e)(l>. The Director may request 
such additional information as may be reasonablv necessary to 
verify that all the conditions for removal in 40 CFR 
60.752(b)(2)(v) have been met. 

(0 The owner or operator of a MSW landfill seeking to 
comply with Rule .1703(b)(2) of this Section using an active 
collection system designed in accordance with 40 CFR 
60.752(b)(2)(ii) shall submit annual reports of the recorded 
information in 40 CFR 60.757(0(1) through (f)(6). The initial 
annual report shall be submitted within 180 days of installation 
and start-up of the collection and control system, and shall 
include the initial performance test report required under 40 
CFR 60.8. 

(g) The owner or operator of a MSW landfill seeking to 
comply with Rule .1703(b)(3) of this Section using an enclosed 
combustion devices or flares shall report the exceedences as 
defined in 40 CFR 60.758(c)(1). 

(h) The owner or operator of a MSW landfill required to 
comply with Rule .1703(b)(1) of this Section shall include the 
information given in 40 CFR 60.757(g)(1) through (6) with the 
initial performance test report required under 40 CFR 60.8. 

Authority G.S. 143-215. 3(a)(1); 143-215.65; 143-215.66; 143- 
215. 107(a)(5). (10). 

.1709 RECORDKEEPING REQUIREMENTS 

(a) The owner or operator of a MSW landfill subject to this 
Section and having a maximum design capacity greater than 2.5 
million cubic meters or 2.75 million tons shall kee p on-site for 
at least five years records of the information listed in 40 CFR 
60.758(a). Off-site records may be maintained if they are 
retrievable within four hours. Either paper copy or electronic 
formats of the records shall be acceptable. 

(b) The owner or operator of a controlled landfill shall keep 
up-to-date, readily accessible records for the life of the control 
equipment of the data listed in 40 CFR 60.757(b)(1) through 
(b)(4) as measured during the initial performance test or 
compliance determination. Records of subsequent tests or 
monitoring shall be maintained for a minimum of five years. 
Records of the control device vendor specifications shall be 
maintained until removal. 

(c) Each owner or operator of a MSW landfill subject to this 
Section shall keep for five years up-to-date, readily accessible 
continuous records of the equipment operating parameters 
specified to be monitored in Rule .1707 of tliis Section and 
records for periods of operation during which the parameter 
boundaries established during the most recent performance test 
are exceeded. The parameter boundaries considered in excess 
of those established during the performance test are defined in 
40 CFR 60.757(c)(l)(i) and £iil and are also required to be 
reported under Rule .1708(g) of this Section. 

(d) The owner or operator of a MSW landfill subject to Rule 
.1703(b) of this Section shall keep for the life of the collection 
system an up-to-date, readily accessible plot map showing 
existing and planned collectors in the system and provide 



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unique identification location labels for each collector. Records 
of newly installed collectors shall be maintained in accordance 
with 40 CFR 60. 758(d)(1) and documentation of asbestos- 
containing or nondegradable waste excluded from collection 
shall be kept in accordance with 40 CFR 60.758(d)(2). 

£el The owner or operator of a MSW landfill subject to Rule 
■ 1703(b) of this Section shall keep for at least five years records 
of emissions from the collection and control system exceeding 
the emission standards in accordance with 40 CFR 60.758(e). 

Authority G.S. 143-215. 3(a)(1); 143-215.65; 143-215.66; 143- 
215. 107(a)(4). (5), (iO). 

.1710 COMPLIANCE SCHEDULES 

(a) Except as provided for in Paragraph (b) of this Rule, the 
schedule for compliance with the requirements of this Section 
shall meet the following deadlines: 

(1) Each existing MSW landfill subject to this Section 
according to Rule .1702 of this Section and 
exceeding the design capacity limitation of Rule 
.1703(a)(1) of this Section shall submit an 
application for a permit under 15A NCAC 20 .0500 
by July 1. 1999. 

(2) Each existing MSW landfill subject to this Section 
according to Rule .1702 of this Section and 
exceeding the design capacity and NMOC emission 
rate limitations of Rule .1703(a)(1) and (2) of this 
Section shall: 

(A) submit a site-specific design plan for the gas 
collection and control system to the Director 
by July 1. 1999: and 

(B) plan, award contracts, and install MSW 
landfill air emission collection and control 
system capable of meeting the emission 
standards established under Rule . 1703 of this 
Section by January 1 . 2001 . 

(b) For each existing MSW landfill subject to thjs Section as 
specified in Rule .1702 of tins Section and meeting the design 
capacity condition of Rule .1703(a)(1) of tins Section whose 
NMOC emission rate is less than 55 tons per year on July J_, 
1998. shall: 

(1) submit a site-specific design plan for the gas 
collection and control system to the Director within 
12 months of first exceeding the NMOC emission 
rate of 55 tons per year: and 

(2) plan, award contracts, and install MSW landfill air 
emission collection and control system capable of 
meeting the emission standards established under 
Rule . 1703 of tins Section within 30 months of the 
date when the conditions in Rule .1703(a)(2) of this 
Section are met. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(4), (5). 

SECTION .1900 - OPEN BURNING 

.1902 DEFINITIONS 



For the purpose of this Section, the following definitions 
apply: 

t^i "AlIMD" means the Asbestos Hazard Management 

B r anch of the Division of E p idemi o l o gy. 
(l)(¥i "Air Curtain Burner" means a stationary or portable 
combustion device that directs a plane of high 
velocity forced draft air through a manifold head into 
a pit with vertical walls in such a manner as to 
maintain a curtain of air over the surface of the pit 
and a recirculating motion of air under the curtain. 
(2)<^ "Dangerous materials" means explosives or 
containers used in the holding or transporting of 
explosives. 

(3) "HHCB" means the Health Hazards Control Branch 
of the Division of Epidemiology. 

(4) "Land clearing" means the uprooting or clearing of 
vegetation in connection with construction for 
buildings; right-of-way; agricultural, residential, 
commercial, or industrial development; mining 
activities; or the initial clearing of vegetation to 
enhance property value; but does not include routine 
maintenance or property clean-up activities. 

(5) "Log" means any limb or trunk whose diameter 
exceeds six inches. 

(6) "Nuisance" means causing physical irritation 
exacerbating a documented medical condition, 
visibility impairment, or evidence of soot or ash on 
property or structure other than the property on 
which the burning is done. 

(7) "Occupied structure" means a building in which 
people may live or work or one intended for housing 
farm or other domestic animals. 

(8) "Open burning" means the burning of any matter in 
such a maimer that the products of combustion 
resulting from the burning are emitted directly into 
the atmosphere without passing through a stack, 
chimney, or a permitted air pollution control device. 

(9) "Person" as used in Rule .1901(c) 2D .19Ql(c). of 
this Section, means: 

(a) the person in operational control over the open 
burning, or 

(b) the landowner or person in possession or 
control of the land when he has directly or 
indirectly allowed the open burning or has 
benefited from it. 

(10) "Public pick-up" means the removal of refuse, yard 
trimmings, limbs, or other plant material from a 
residence by a governmental agency, private 
company contracted by a govenmiental agency or 
municipal service. 

(11) "Public road" means any road that is part of the State 
highway system; or any road, street, or right-of-way 
dedicated or maintained for public use. 

(12) "RACM" means regulated asbestos containing 
material as defined in 40 CFR 61 . 142. 

(13) "Refuse" means any garbage, rubbish, or trade 
waste. 



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(14) "Regional Office Supervisor" means the supervisor 
of personnel of the Division of Envir o nmental 
Managemen t Air Quality in a regional office of the 
Department of Environment, Health and Natural 
Resources. 

(15) "Salvageable items" means any product or material 
that was first discarded or damaged and then all, or 
part, was saved for future use, and include insulated 
wire, electric motors, and electric transformers. 

(16) "Synthetic material" means man-made material, 
including tires, asphalt materials such as shingles or 
asphaltic roofing materials, construction materials, 
packaging for construction materials, wire, electrical 
insulation, and treated or coated wood. 

Authority G.S. 143-21 5. 3(a)(1): 143-212; 143-213. 

.1903 PERMISSIBLE OPEN BURNING 
WITHOUT A PERMIT 

(a) All open burning is prohibited except open burning 
allowed under Paragraph (b) of this Rule or Rule . 1904 of this 
Section. 

(b) The following types of open burning are permissible 
without a permit: 

(1) open burning of leaves, tree branches or yard 
trimmings, excluding logs and stumps, if the 
following conditions are met: 

(A) The material burned originates on the premises 
of private residences and is burned on those 
premises; 

(B) There are no public pickup services available; 

(C) Non-vegetative materials, such as household 
garbage or other man-made materials are not 
burned; 

(D) The burning is started no earlier than 8:00 
a.m. and no additional combustible material is 
added to the fire between 6:00 p.m. on one 
day and 8:00 a.m. on the following day; 

(E) The burning does not create a nuisance; and 

(F) Material is not burned when the Division of 
Forest Resources has banned burning for that 
area; 

(2) open burning for land clearing or right-of-way 
maintenance if the following conditions are met: 

(A) Prevailing winds at the time of burning are 
away from any area, including public road 
within 250 feet of the burning as measured 
from the edge of the pavement or other 
roadway surface, which may be significantly 
affected by smoke, ash, or other air pollutants 
from the burning; 

(B) The location of the burning is at least 1 ,000 
feet from any dwelling, group of dwellings, or 
commercial or institutional establishment, or 
other occupied structure not located on the 
property on which the burning is conducted. 
The regional office supervisor may grant 



exceptions to the setback requirements if: 
(i) a signed, written statement waiving 
objections to the open burning 
associated with the land clearing 
operation is obtained before the open 
burning begins from all residents or 
owners of dwellings, commercial or 
institutional establishments, or other 
occupied structures within 1 ,000 feet of 
the open burning site, or 

(ii) an air curtain burner as described in 
Rule .1904 of this Section, is utilized at 
the open burning site; 

(C) Heavy oils, asphaltic materials such as 
shingles and other roofing materials, items 
containing natural or synthetic rubber, or any 
materials other than plant growth are not 
burned. However, kerosene, distillate oil, or 
diesel fuel may be used to start the fire; 

(D) Initial burning begins only between the hours 
of 8:00 a.m. and 6:00 p.m., and no 
combustible material is added to the fire 
between 6:00 p.m. on one day and 8:00 a.m. 
on the following day, except that, under 
favorable meteorological conditions, deviation 
from these hours of burning may be granted 
by the regional office supervisor. The owner 
or operator of the open burning operation shall 
be responsible for obtaining written approval 
for burning during periods other than those 
specified in this Part; and 

(E) No fires are started or vegetation is added to 
existing fires when the Division of Forest 
Resources has banned burning for that area. 

Debris from land clearing or right-of-way 
maintenance may be carried off-site for open burning 
to facilities permitted in accordance with Rule . 1 904 
of this Section for the operation of an air curtain 
burner. However, no material may be taken off-site 
for open burning in areas where a permitted air 
curtain burner is not available; 

(3) camp fires and fires used solely for outdoor cooking 
and other recreational purposes, or for ceremonial 
occasions, or for human warmth and comfort and 
which do not create a nuisance and do not use 
synthetic materials or refuse or salvageable materials 
for fuel; 

(4) fires purposely set to forest lands for forest 
management practices acceptable to the Division of 
Forest Resources; 

(5) fires purposely set to agricultural lands for disease 
and pest control and fires set for other agricultural or 
apicultural practices acceptable to the Department of 
Agriculture; 

(6) fires purposely set for wildlife management practices 
acceptable to the Wildlife Management Commission; 

(7) fires for the disposal of dangerous materials when it 



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is the safest and most practical method of disposal; 

(8) fires for the disposal of material generated as a result 
of a natural disaster, such as tornado, hurricane, or 
flood if the regional office supervisor grants 
permission for the burning. The person desiring to 
do the burning shall document to the regional office 
supervisor of the appropriate regional office that 
there is no other practical method of disposal of the 
waste. Factors that the regional office supervisor 
shall consider in granting permission for the burning 
include type, amount, and nature of combustible 
substances. The regional office supervisor shall not 
grant permission for the burning if the primary 
purpose of the fire is to dispose of synthetic materials 
or refuse or recovery of salvageable materials. Fires 
authorized under this Subparagraph shall comply 
with the conditions of Subparagraph (b)(2) of this 
Rule; 

(9) fires purposely set by manufacturers of fire 
extinguishing materials or equipment, testing 
laboratories, or other persons, for the purpose of 
testing or developing these materials or equipment in 
accordance with a valid standard qualification 
program; 

(10) fires purposely set for the instruction and training of 
fire-fighting personnel, including fires at permanent 
fire-fighting training facilities, or when conducted 
under the supervision of or with the cooperation of 
one or more of the following agencies: 

(A) the Division of Forest Resources, 

(B) the North Carolina Insurance Department, 

(C) North Carolina technical institutes, or 

(D) North Carolina community colleges, 
including: 

(i) the North Carolina Fire College, or 
(ii) the North Carolina Rescue College; and 

(11) fires not described in Subparagraph (10) of this 
Paragraph, purposely set for the instruction and 
training of fire-fighting persormel, provided that: 

(A) The regional office supervisor of the 
appropriate regional office and the AIIMD 
HHCB have been notified according to the 
procedures and deadlines contained in the 
appropriate regional notification form. This 
form may be obtained by writing the 
appropriate regional office at the address in 
Rule .1905 of this Section and requesting it, 
and 

(B) The regional office supervisor has granted 
permission for the burning. Factors that the 
regional office supervisor shall consider in 
granting permission for the burning include 
type, amount, and nature of combustible 
substances. The regional office supervisor 
shall not grant permission for the burning of 
salvageable items, such as insulated wire and 
electric motors or if the primary purpose of 



the fire is to dispose of synthetic materials or 

refuse. The regional office supervisor of the 

appropriate regional office shall not consider 

previously demolished structures as having 

training value. However, the regional office 

supervisor of the appropriate regional office 

may allow an exercise involving the burning 

of motor vehicles burned over a period of time 

by a training unit or by several related training 

units. Any deviations from the dates and 

times of exercises, including additions, 

postponements, and deletions, submitted in the 

schedule in the approved plan shall be 

communicated verbally to the regional office 

supervisor of the appropriate regional office at 

least one hour before the bum is scheduled. 

(c) The authority to conduct open burning under this Section 

does not exempt or excuse any person from the consequences, 

damages or injuries which may result from this conduct. It 

does not excuse or exempt any person from complying with all 

applicable laws, ordinances, rules or orders of any other 

governmental entity having jurisdiction even though the open 

burning is conducted in compliance with this Section. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

SUBCHAPTER 2Q - AIR QUALITY 
PERMIT PROCEDURES 

SECTION .0100 - GENERAL PROVISIONS 

.0103 DEFINITIONS 

For the purposes of this Subchapter, the definitions in G.S. 
143-212 and 143-213 and the following definitions apply: 

(1) "Air Pollutant" means an air pollution agent or 
combination of such agents, including any physical, 
chemical, biological, radioactive substance or matter 
which that is emitted into or that otherwise enters the 
ambient air. Water vapor is not considered to be an 
air pollutant. 

(2) "Allowable emissions" mean the maximum emissions 
allowed by the applicable rules contained in 15A 
NCAC 2D or by permit conditions if the permit 
limits emissions to a lesser amount. 

(3) "Alter or change" means to make a modification. 

(4) "Applicable requirements" means: 

(a) any requirement of Section .05(X) of this 
Subchapter; 

(b) any standard or other requirement provided 
for in the implementation plan approved or 
promulgated by EPA through rulemaking 
under Title I of the federal Clean Air Act that 
implements the relevant requirements of the 
federal Clean Air Act including any revisions 
to 40 CFR Part 52; 

(c) any term or condition of a construction permit 
for a facility covered under 15 A NCAC 2D 



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.0530, .0531. or .0532; (16) 

(d) any standard or other requirement under 
Section 111 or 112 of the federal Clean Air 
Act, but not including the contents of any risk 
management plan required under Section 112 

of the federal Clean Air Act; (17) 

(e) any standard or other requirement under Title 

IV; (18) 

(f) any standard or other requirement governing 
solid waste incineration under Section 129 of 
the federal Clean Air Act; 

(g) any standard or other requirement under 
Section 183(e), 183(f), or 328 of the federal 

Clean Air Act; (19) 

(h) any standard or requirement under Title VI of 

the federal Clean Air Act unless a permit for (20) 

such requirement is not required under this 
Section; (21) 

(i) any requirement under Section 504(b) or 

1 14(a)(3) of the federal Clean Air Act; or 
(i) any national ambient air quality standard or 
increment or visibility requirement under Part 
C of Title I of the federal Clean Air Act, but 
only as it would apply to temporary sources 
permitted pursuant to 504(e) of the federal 
Clean Air Act. 

(5) "Applicant" means the person who is applying for an 
air quality permit from the Division. 

(6) "Application package" means all elements or 
documents needed to make an application complete. 

(7) "CFR" means Code of Federal Regulations. 

(8) "Construction" means change in the method of 
operation or any physical change (including on-site 
fabrication, erection, installation, replacement, 
demolition, or modification of a source) that results 
in a change in emissions or affects the compliance 
status. 

(9) "Director" means the Director of the Division of Air 
Quality. Environmen t al Managemen t . 

(10) "Division" means the Division of Air Quality. 
envir o nmental Managemen t . 

(11) "EPA" means the United Stales Environmental 
Protection Agency or the Administrator of the 
Environmental Protection Agency. 

(12) "EPA approves" means full approval, interim 
approval, or partial approval by EPA. 

(13) "Equivalent imadulterated fuels" means used oils that 

have been refined such that the content of toxic (22) 

additives or contaminants in the oil are no greater 

than those in unadulterated fossil fuels. (23) 

(14) "Facility" means all of the pollutant emitting 
activities, except transportation facilities as defined 
under Rule .0802 of this Subchapter, that are located 

on one or more adjacent properties under common (24) 

control. 

(15) "Federally enforceable" or "federal-enforceable" 

means enforceable by EPA. (25) 



"Fuel combustion equipment" means any fuel 

burning source covered under 15A NCAC 2D .0503, 

.0504, .0524(a)(1), (2 9 ), (56), or (65), or :05367 

.0536. or 40 CFR Part 60 Subpart D. Da. Db. or 

Dc. 

"Green wood" means wood with a moisture content 

of 18 percent or more. 

"Hazardous air pollutant" means any pollutant which 

that has been listed pursuant to Section 1 12(b) of the 

federal Clean Air Act. Pollutants which are listed 

only in 15A NCAC 2D .1104 (Toxic Air Pollutant 

Guidelines), but not pursuant to Section 112(b), are 

not included in this definition. 

"Insignificant activities" means any activity exempted 

under Rule .0102 of this Section. 

"Irrevocable contract" means a contract that carmot 

be revoked without substantial penalty. 

"Lesser quantity cutoff" means: 

(a) for a source subject to the requirements of 
Section 1 12(d) or (j) of the federal Clean Air 
Act, the level of emissions of hazardous air 
pollutants below which the following are not 
required: 

(i) maximum achievable control 

technology (MACT) or generally 
available control technology (GACT), 
including work practice standards, 
requirement under Section 1 12(d) of the 
federal Clean Air Act; 

(ii) substitute MACT or GACT adopted 
under Section 112(1) of the federal 
Clean Air Act; or 

(iii) a MACT standard established under 
Section 112(j) of the federal Clean Air 
Act; 

(b) for modification of a source subject to, or may 
be subject to, the requirements of Section 
1 12(g) of the federal Clean Air Act, the level 
of emissions of hazardous air pollutants below 
which MACT is not required to be applied 
under Section 1 12(g) of the federal Clean Air 
Act; or 

(c) for all other sources, potential emissions of 
each hazardous air pollutant below 10 tons per 
year and the aggregate potential emissions of 
all hazardous air pollutants below 25 tons per 
year. 

"Major facility" means a major source as defined 

under 40 CFR 70.2. 

"Modification" means any physical change or change 

in method of operation that results in a change in 

emissions or affects compliance status of the source 

or facility. 

"Owner or operator" means any person who owns, 

leases, operates, controls, or supervises a facility, 

source, or air pollution control equipment. 

"Peak shaving generator" means a generator that is 



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located at a facility and is used only to sen-e that 
facility's on-site electrical load during peak demand 
periods for the purpose of reducing the cost of 
electricity; it does not generate electricity for resale. 
A peak shaving generator may also be used for 
emergency backup. 

(26) "Permit" means the legally binding written 
document, including any revisions thereto, issued 
pursuant to G.S. 143-215.108 to the owner or 
operator of a facility or source that emits one or more 
air pollutants and that allows that facility or source to 
operate in compliance with G.S. 143-215.108. This 
document specifies the requirements applicable to the 
facility or source and to the permittee. 

(27) "Permittee" means the person who has received an 
air quality permit from the Division. 

(28) "Potential emissions" means the rate of emissions of 
any air pollutant which that would occur at the 
facility's maximum capacity to emit any air pollutant 
under its physical and operational design. Any 
physical or operational limitation on the capacity of 
a facility to emit an air pollutant shall be treated as a 
part of its design if the limitation is federally 
enforceable. Such physical or operational limitations 
include air pollution control equipment and 
restrictions on hours of operation or on the type or 
amoimt of material combusted, stored, or processed. 
Potential emissions include fugitive emissions as 
specified in the defmition of major source in 40 CFR 
70.2. Potential emissions do not include a facility's 
secondary emissions such as those from motor 
vehicles associated with the facility and do not 
include emissions from insignificant activities listed 
in Rule .0102(b)(1) of this Section. If a rule in 40 
CFR Part 63 uses a different methodology to 
calculate potential emissions, that methodology shall 
be used for sources and pollutants covered under that 
rule. 

(29) "Portable generator" means a generator permanently 
mounted on a trailer or a frame with wheels. 

(30) "Regulated air pollutant" means: 

(a) nitrogen o.xides or any volatile organic 
compound as defined under 40 CFR 5 1 . 100; 

(b) any pollutant for which there is an ambient air 
quality standard under 40 CFR Part 50 ; 

(c) any pollutant regulated under 15A NCAC 2D 
.0524, . 1 1 10, or . 1 1 1 1 or 40 CFR Part 60, 
61, or 63; 

(d) any pollutant subject to a standard 
promulgated under Section 1 12 of the federal 
Clean Air Act or other requirements 
established under Section 112 of the federal 
Clean Air Act, including Section 112(g) (but 
only for the facility subject to Section 
1 12(g)(2) of the federal Clean Air Act), (j), or 
(r) of the federal Clean Air Act; or 

(e) any Class I or II substance listed under Section 



602 of the federal Clean Air Act. 

(31) "Source" means any stationary article, machine, 
process equipment, or other contrivance, or 
combination thereof, from which air pollutants 
emanate or are emitted, either directly or indirectly. 

(32) "Toxic air pollutant" means any of the carcinogens, 
chronic toxicants, acute systemic toxicants, or acute 
irritants tha t ar e listed in 15A NCAC 2D . 1 104. 

(33) "Transportation facility" means a complex source as 
defined at G.S. 143-213(22) that is subject to the 
requirements of 15A NCAC 2D .0800. 

(34) "Unadulterated fossil fuel" means fuel oils, coal, 
natural gas, or liquefied petroleum gas to which no 
toxic additives have been added that could result in 
the emissions of a toxic air pollutant listed under 
15ANCAC2D .1104. 

Authority G.S. ] 43-21 5. 3 (a)(1); 143-212; 143-213. 

.0108 DELEGATION OF AUTHORITY 

The Director may delegate the processing of permit 
applications and the issuance of permits to the Deputy Director, 
t he Chief o f the Ai r Quali t y Section, the regional office air 
quality supervisor, any air quali t y su p e r visor in the r egional 
offices, or any supervisor in the Permitting Section B r anch of 
the Division of Air Quality Secti o n as he considers appropriate. 
This delegation shall not include the authority to deny a permit 
application or to revoke or suspend a permit. 

Authority G.S. 143-215. 3(a)(1). (4). 

SECTION .0200 - PERMIT FEES 

.0207 ANNUAL EMISSIONS REPORTING 

(a) The owner or operator of a Title V facility shall report 
by June 30th of each year the actual emissions during the 
previous calendar year of: 

(1) volatile organic compounds, 

(2) nitrogen oxides. 

(3) total suspended particulates, 

(4) sulfur dioxide, 

(5) fluorine, 

(6) hydrogen chloride, 

(7) hydrogen fluoride, 

(8) hydrogen sulfide. 

(9) methyl chloroform. 

(10) methylene chloride. 

(11) ozone. 

(12) chlorine. 

(13) hydrazine. 

(14) phosphine, 

(15) particulate matter (PM 10), 

(16) carbon monoxide, and 

(17) teadr lead, and 

(18) perchloroethylene. 

(b) The owner or operator of a facility not included in 
Paragraph (a) of this Rule, other than a transportation facility. 



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that has actual emissions of 25 tons per year or more of 
nitrogen oxides or volatile organic compounds and that is 
located in Davidson, Durham, Forsyth, Gaston, Guilford, 
Mecklenburg, or Wake County, in Dutchville Township in 
Granville County, or in that part of Davie County bounded by 
the Yadkin River, Dutchmans Creek, North Carolina Highway 
801, Fulton Creek and back to the Yadkin River shall report by 
June 30th of each year the actual emissions of nitrogen oxides 
and volatile organic compounds during the previous calendar 
year. 

(c) The report shall be in or on such form as may be 
established by the Director. The Director may require reporting 
for sources within a facility, for other facilities, or for other 
pollutants, parameters, or information, by permit condition or 
pursuant to 15A NCAC 2D .0202 (Registration of Air 
Pollution Sources). This annual reporting requirement shall 
begin with calendar year 1993 emissions. The accuracy of the 
report shall be certified by a responsible official of the facility 
as defined under 40 CFR 70.2. 

Authority G.S. 143-215. 3(a)(1). (la), (lb), <ld); 143-215.65; 
143-215.107; 143B-282; 150B-21.6. 

SECTION .0300 - CONSTRUCTION AND 
OPERATION PERMITS 

.0307 PUBLIC PARTICIPATION PROCEDURES 

(a) This Rule does not apply to sources subject to the 
requirements of 15A NCAC 2D .0530 or .0531 or Appendix S 
or 40 CFR Part 51 . For sources subject to the requirements of 
15A NCAC 2D .0530 or .0531 or Appendix S of 40 CFR Part 
51, the procedures in 15A NCAC 2D .0530 or .0531 or 
Appendix S of 40 CFR Part 51 shall be followed, respectively. 

(b) The public notice shall be given by publication in a 
newspaper of general circulation in the area where the facility 
is located and shall be mailed to persons who are on the 
Division's mailing list for air quality permit notices and to 
EPA. 

(c) The public notice shall identify: 

(1) the affected facility; 

(2) the name and address of the permittee; 

(3) the name and address of the person to whom to send 
comments and requests for public hearing; 

(4) the name, address, and telephone number of 
Divisional staff a person from whom interested 
persons may obtain additional information, including 
copies of the draft permit, the application, 
compliance plan, monitoring and compliance reports, 
all other relevant supporting materials, and all other 
materials available to Division that are relevant to the 
permit decision; 

(5) the activity or activities involved in the permit 
action; 

(6) any emissions change involved in any permit 
modification; 

(7) a brief description of the public comment procedures; 

(8) the procedures to follow to request a public hearing 



unless a public hearing has already been scheduled; 
and 
(9) the time and place of any hearing that has already 
been scheduled. 

(d) The notice shall allow at least 30 days for public and 
EPA comments. 

(e) If the Director determines that significant public interest 
exists or that the public interest will be served, the Director 
shall require a public hearing to be held on a draft permit. 
Notice of a public hearing shall be given at least 30 days before 
the public hearing. 

(0 The Director shall make available for public inspection 
in at least one location in the region affected, the information 
submitted by the permit applicant and the Division's analysis of 
that application. 

(g) The Director shall send EPA a copy of each draft permit 
subject to public and EPA comment when he sends EPA the 
notice of request for public comment for that permit and shall 
send EPA a copy of each such permit when it is issued. 

(h) Persons who desire to be placed on the Division's 
mailing list for air quality permit notices shall send their 
request to the Director, Division of Air Quality. Envi r onmen t al 
Managemen t , P.O. Box 29580. 2 9 535, Raleigh, North 
Carolina 27626-0580 27626-0535 and shall pay an annual fee 
of thirty dollars ($30.00). 

(i) Any persons requesting copies of material identified in 
Subparagraph (b)(4) of this Rule shall pay ten cents ($0.10) a 
page for each page copied. Confidential material shall be 
handled in accordance with Rule .0107 of this Subchapter. 



Authority G.S. 
143-215.108. 



143-215. 3(a)(1), (3); 143-215.4(b); 



SECTION .0500 - TITLE V PROCEDURES 

.0521 PUBLIC PARTICIPATION 

(a) The Director shall give public notice with an opportunity 
for comments and a hearing on all draft permits and permit 
revisions except permit revisions issued under Rules .0514, 
.0515, .0524 of this Section. The Director may give public 
notice with an opportimity for comments and a hearing on draft 
permit revisions issued under Rule .0514, .0515, 0524 of this 
Section. 

(b) The notice shall be given by publication in a newspaper 
of general circulation in the area where the facility is located 
and shall be mailed to persons who are on the Division's 
mailing list for air quality permit notices. 

(c) The notice shall identify: 

(1) the affected facility; 

(2) the name and address of the permittee; 

(3) the name and address of the person to whom to send 
comments and requests for public hearing; 

(4) the name, address, and telephone number of 
Divisional staff from whom interested persons may 
obtain additional information, including copies of the 
permit draft, the application, compliance plan, 
monitoring and compliance reports, all other relevant 



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supporting materials, and all other materials available 
to Division that are relevant to the permit decision; 

(5) the activity or activities involved in the permit 
action; 

(6) any emissions change involved in any permit 
modification; 

(7) a brief description of the comment procedures; 

(8) the procedures to follow to request a hearing unless 
a hearing has already been scheduled; and 

(9) the time and place of any hearing that has already 
been scheduled. 

(d) The Director shall send a copy of the notice to affected 
States and EPA. 

(e) The notice shall allow 30 days for public comments. 

(f) If the Director finds that a public hearing is in the best 
interest of the public, the Director shall require a public hearing 
to be held on a draft permit. Notice of a public hearing shall 
be given at least 30 days before the hearing. 

(g) If EPA requests a record of the comments and of the 
issues raised during the public participation process, the 
Director shall provide EPA this record. 

(h) Persons who desire to be placed on the Division's 
mailing list for air quality permit notices shall send their 
request to the Director, Division of Air Quality. Environmen t al 
Managemen t , P.O. Box 29580. 2 9 535. Raleigh, North 
Carolina 27626-0580 27626-0535 and shall pay an annual fee 
of thirty dollars (S30.00). 

(i) Any persons requesting copies of material identified in 
Subparagraph (c)(4) of this Rule shall pay ten cents (SO. 10) a 
page for every page copied. Confidential material shall be 
handled in accordance with Rule .0107 of this Subchapter. 



Authority G.S. 143-215. 3(a)(1). (3); 
143-215.108: 143-215.111(4). 



143-215. 107(a)(10): 



SECTION .0800 - EXCLUSIONARY 
RULES 

.0805 GRAIN ELEVATORS 

(a) This Rule applies to grain elevators that that only: 

(1 ) receive grain directly from the farm farm; and 

(2) that only clean, dry, grind, or store grain before it is 
transported elsewhere. 

(b) This Rule shall not apply to toi 

(1) facilities that process grain beyond cleaning, drying, 
or g r inding, grinding; or 

(2) facilities that use: 

(A) tunnel belts, or 

(B) headhouses and elevator legs vented to 
cyclonic control devices. 

(c) Potential emissions for grain elevators shall be 
determined using actual tons of grain received or shipped, 
whichever is greater. 

(d) Any grain elevator that receives or ships less than 21,000 
588.000 tons of grain per year shall be exempted from the 
requirements of Section .0500 of this Subchapter. 

(c) The owner or operator of any grain eleva t o r exempted by 



t his Rule from Sec t ion .0500 of t his Subchapter shall submit 



by Feb r uary 15 of each year, a r eport c o ntaining the following 
infoimatioii. 

f4i the name and locati o n of th e grain elevator. 



(2^ the tons of g r ain r eceived and shipped during tin 

p revious calendar year; and 



f9) the signature of the a ppr o p riate official as iden t ifi e c 



in Rule .0304(j> of this Subchapter ce rt ifying as m 

the t ru t h and accu r acy of t he repor t . 

(e) The owner or operator of a grain elevator that receives oi 

ships: 



m 



less than 392.000 tons of grain p er year shall retain 
records of actual annual tons of grain received or 
shipp ed at the site. These records shall be madi 



iH 



available to Division personnel upon request of thi 

Division; or 

at least 392.000 but less than 588.000 tons of grain 



per year shall retain records of actual aimual tons of 



gram received or shipped at the site and shall submit 



to the regional supervisor of the a ppropriate Division 



regional office, by February 15 of each year, a report 

containing the following information: 

(A) the name and location of the grain elevator 






the tons of grain received and shipped during 
the previous calendar year: and 
the signature of the appropriate official as 
identified in Rule .0304(i) of this Subchapter 



certifying as to the truth and accuracy of the 

report. 

(0 The owner or operator of the grain elevator exempted by 
this Rule from Section .0500 of this Subchapter shall provide 
documentation of actual annual tons of grain received or 
shipped to the Director upon request. The owner or operator 
of a grain elevator exempted by this Rule from Section .0500 
of this Subchapter shall retain records to document actual 



annual tons of grain received or shipped for each of the 
previous three years. 

(g) For facilities covered by this Rule, the owner or operator 
shall report to the Director any exceedance of a requirement of 
this Rule within one week of its occurrence. 

Authors G.S. 143-215. 3(a); 143-215. 107(a)(10); 143- 
215.108. 

.0806 COTTON GINS 

(a) This Rule applies to cotton gins that only gin cotton 
between September and January, inclusively. The Director may 
extend this time period beyond the end of January if the 
Commissioner of Agriculture certifies to the Director that the 
cotton ginning season has been delayed because of adverse 
weather. 

(b) Potential emissions for cotton gins shall be determined 
using actual number of 5(X)- p ound bales of cotton cotton, not 
exceeding 500 pounds each, produced. 

(c) Any cotton gin that gins less than 62,4(X) 167.000 bales 
of cotton per year shall be exempted from the requirements of 
Section .0500 of this Subchapter. 



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(d) The owner or operator of any cotton gin exempted by 
this Rule from Section .0500 of this Subchapter shall submit, 
by March 1 of each year, a report containing the following 
information: 

(1) the name and location of the cotton gin; 

(2) the number of bales of cotton produced during that 
season; and 

(3) the signature of the appropriate official as identified 
in Rule .0304(j) of this Subchapter certifying as to 
the truth and accuracy of the report. 

(e) The owner or operator of any cotton gin exempted by 
this Rule from Section .0500 of this Subchapter shall provide 
documentation of number of bales produced to the Director 
upon request. The owner or operator of a cotton gin exempted 
by this Rule from Section .0500 of this Subchapter shall retain 
records to document number of bales of cotton produced for 
each of the previous three years. 

(f) For facilities covered by this Rule, the owner or operator 
shall report to the Director any exceedance of a requirement of 
this Rule within one week of its occurrence. 

Authority G.S. 143-215. 3(a); 143-2 15. 107(a) (10); 143- 
215.108. 

.0807 EMERGENCY GENERATORS 

(a) This Rule applies to facilities whose only sources 
requiring a permit is one or more emergency generators or 
emergency use internal combustion engines, engines and 
associated fuel storage tanks. 

(b) For the purposes of this Rule: 

(1) "Emergency generator" means a stationary internal 
combustion engine used to generate electricity only 
during the loss of primary power at the facility that 
is beyond the control of the owner or operator of the 
facility or during maintenance when necessary to 
protect the environment. An emergency generator 
may be operated periodically to ensure that it will 
operate; 

(2) "Emergency use internal combustion engines" means 
stationary internal combustion engines used to drive 
pumps, aerators, and other equipment only during 
the loss of primary power at the facility that is 
beyond the control of the owner or operator of the 
facility or during maintenance when necessary to 
protect the environment. An emergency use internal 
combustion engine may be operated periodically to 
ensure that it will operate. 

(c) For the purposes of this Rule, potential emissions for 
emergency generators and emergency use internal combustion 
engines shall be determined using actual fuel consumption. 

(d) Any facilities facility whose emergency generators and 
emergency use internal combustion engines consume less than: 

(1) 322,000 gallons per year of diesel fuel for diesel- 
powered generators, 

(2) 62,500,000 cubic feet per year of natural gas for 
natural gas-powered generators, 

(3) 1 ,440,000 gallons per year of liquified petroleum gas 



for liquified petroleum gas-powered generators, and 
(4) 50,800 gallons per year of gasoline for gasoline- 
powered generators, 
shall be exempted from the requirements of Section .0500 of 
this Subchapter. 

(e) The owner or operator of any emergency generator or 
emergency use internal combustion engine exempted by this 
Rule from Section .0500 of this Subchapter shall submit, by 
February 15th of each year a report containing the following 
information: 

(1) the name and location of the facility; 

(2) the types and quantity of fuel consumed by 
emergency generators and emergency use internal 
combustion engines; and 

(3) the signature of the appropriate official as identified 
in Rule .0304(j) of this Subchapter certifying as to 
the truth and accuracy of the report. 

(0 The owner or operator of any facility exempted by this 
Rule from Section .0500 of this Subchapter shall provide 
documentation of types and quantities of fuel consumed to the 
Director upon request. The owner or operator of a facility 
exempted by this Rule from Section .0500 of this Subchapter 
shall retain records to document types and quantities of fuels 
consumed for each of the previous three years. 

(g) For facilities covered by this Rule, the owner or operator 
shall report to the Director any exceedance of a requirement of 
this Rule within one week of its occurrence. 

Authority G.S. 143-215. 3(a); 143-215. 107(a)(10); 143- 
215.108. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 12 - LICENSING BOARD 
FOR GENERAL CONTRACTORS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Licensing Board for General 
Contractors intends to amend rules cited as 21 NCAC 12 
.0204, .0901. .0903 - .0904. Notice of Rule-making 
Proceedings was published in the Register on May 15, 1997. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 10:00 a.m. on October 
22, 1997 at the Engineering Graduate Research Center, 1010 
Main Campus Drive, Centennial Campus - North Carolina 
State University, Raleigh, N.C. 

Reason for Proposed Action: 

21 NCAC 12 .0204 - to require that financial and financial 

reporting terminologies used in this Rule be construed in 

accordance with standards promulgated by the American 

Institute of Certified Public Accountants. 

21 NCAC 12 .0901 - to add additional definitions which shall 



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apply to the Board's administration of the Homeowners 

Recovery Fund. 

21 NCAC 12 .0903 - to provide requirements for claims in 

which the contractor is a dissolved corporation. 

21 NCAC 12 .0904 - to specify the filing deadline and service 

for claims in which the contractor is a dissolved corporation. 

Comment Procedures: Persons wishing to present oral data, 
views or arguments on a proposed rule or rule change may file 
a notice with the Board at least 10 dcrys prior to the public 
hearing at which the person wishes to speak. Comments should 
be limited to 10 minutes. The Board's address is PO Box 
17187. Raleigh, NC 27619. Written submission of comments 
or argument will be accepted at any time up to and until the 
close of the public hearing. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period. 

SECTION .0200 - LICENSING REQUIREMENTS 

.0204 ELIGIBILITY 

(a) Limited License. The applicant for such a license must: 

(1) Be entitled to be admitted to the examination given 
by the Board in light of the requirements set out in 
G.S. 87-10 and Section .0400 of this Chapter; 

(2) Be financially stable to the extent that the total 
current assets of the applicant or the firm or 
corporation he represents exceed the total current 
liabilities by at least twelve thousand five hundred 
dollars ($12,500.00); 

(3) Possess the competency and the ability, as revealed 
by the applicant's experience and education to engage 
in the practice of general contracting within a 
specified classification or classifications in order to 
successfully complete a single project of a value of 
less than or equal to two hundred fifty thousand 
dollars ($250,000.00), such competency and ability 
being determined in the sole discretion of the Board; 

(4) Successfully complete 70 percent of each part of the 
examination given the applicant by the Board dealing 
with the specified contracting classification chosen 
by the applicant. 

(b) Intermediate License. The applicant for such a license 
must: 

(1) Be entitled to be admitted to the examination given 
by the Board in light of the requirements set out in 
G.S. 87-10 and Section .0400 of this Chapter; 

(2) Be financially stable to the extent that the total 
current assets of the applicant or the firm or 
corporation he represents exceed the total current 
liabilities by at least fifty thousand dollars 
($50,000.00) as reflected in an audited financial 
statement prepared by a certified public accountant or 
a qualified independent accountant who is engaged in 



the public practice of accountancy; 

(3) Possess the competency and the ability as revealed by 
the applicant's exf)erience and education to engage in 
the practice of general contracting within a specified 
classification or classifications in order to 
successfully complete a single project of a value of 
less than or equal to five hundred thousand dollars 
($500,000.00), such competency and ability being 
determined in the sole discretion of the Board; 

(4) Successfully complete 70 percent of each part of the 
examination given the applicant by the Board dealing 
with the specified contracting classification chosen 
by the applicant. 

(c) Unlimited License. The applicant for such a license 
must: 

(1) Be entitled to be admitted to the examination given 
by the Board in light of the requirements set out in 
G.S. 87-10 and Section .0400 of this Chapter; 

(2) Be financially stable to the extent that the total 
current assets of the applicant or the firm or 
corporation he represents exceed the total current 
liabilities by at least one hundred thousand dollars 
($100,000.00) as reflected in an audited financial 
statement prepared by a certified public accountant or 
by a qualified independent accountant who is 
engaged in the public practice of accountancy; 

(3) Possess the competency and the ability, as revealed 
by the applicant's experience and education to engage 
in the practice of general contracting within a 
specified classification or classifications in order to 
successfully complete a single project of a value in 
excess of five hundred thousand dollars ($500,000), 
such competency and ability being determined in the 
sole discretion of the Board; 

(4) Successfully complete 70 percent of each part of the 
examination given the applicant by the Board dealing 
with the specified contracting classification chosen 
by the applicant. 

(d) Should the financial statement submitted by the applicant 
fail to demonstrate the required level of working capital, the 
applicant shall obtain a surety bond from a surety authorized to 
transact surety business in North Carolina pursuant to G.S. 58 
Article 7, 16, 21, or 22. The surety shall provide proof that it 
maintains a rating from A.M. Best, or its successor rating 
organization, of either Superior (A -I- -I- or A -I- ) or Excellent (A 
or A-). The bond shall be continuous in form and shall be 
maintained in effect for as long as the applicant maintains a 
license to practice general contracting in North Carolina or 
until the applicant demonstrates the required level of working 
capital. The application form and subsequent annual license 
renewal forms shall require proof of a surety bond meeting the 
requirements of this Rule. The applicant shall maintain the 
bond in the amount of fifty thousand dollars ($50,000.00) for 
a limited license, two hundred fifty thousand dollars 
($250,000.00) for an intermediate license, and five hundred 
thousand dollars ($500, 000. (X)) for an unlimited license. The 
bond shall be for the benefit of any person who is damaged by 



« 



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PROPOSED RULES 



an act or omission of the applicant constituting breach of a 
construction contract or breach of a contract for the furnishing 
of labor, materials, or professional services to construction 
undertaken by the applicant, or by an unlawful act or omission 
of the applicant in the performance of a construction contract. 
The bond required by this Rule shall be in addition to and not 
in lieu of any other bond required of the applicant by law, 
regulation, or any party to a contract with the applicant. 
Should the surety cancel the bond, the surety and the applicant 
both shall notify the Board immediately in writing. If the 
applicant fails to provide written proof of financial 
responsibility in compliance with this Rule within 30 days of 
the bond's cancellation, then the applicant's license shall be 
suspended until written proof of compliance is provided. After 
a suspension of two years, the applicant shall fulfill all 
requirements of a new applicant for licensure. The practice of 
general contracting by an applicant whose license has been 
suspended pursuant to this Rule will subject the applicant to 
additional disciplinary action by the Board. 

(e) Reciprocity. If an applicant is licensed as a general 
contractor in another state, the Board, in its discretion, need not 
require the applicant to successfully complete the written 
examination as provided by G.S.87-15.1. However, the 
applicant must comply with all other requirements of these 
rules to be eligible to be licensed in North Carolina as a general 
contractor. 

(f) Accounting and reporting standards. Working capital, 
balance sheet with current and fixed assets, current and long 
term liabilities, and other financial terminologies used herein 
shall be construed in accordance with those standards referred 
to as "generally accepted accounting principles" as 
promulgated by the American Institute of Certified Public 
Accountants through pronouncements of the Financial 
Accounting Standards Board, the Governmental Accounting 
Standards Board, and predecessor organizations. As audited 
financial statement, an unqualified opinion, and other financial 
reporting terminologies used herein shall be construed in 
accordance with those standards referred to as "generally 
accepted auditing standards" as promulgated by the American 
Institute of Certified Public Accountants through 
pronouncements of the Auditing Standards Board. 

Authority G.S. 87-1; 87-10. 

SECTION .0900 - HOMEOWNERS RECOVERY FUND 

.0901 DEFINITIONS 

The following definitions shall apply to the Board's 

administration of the Homeowners Recovery Fund established 

pursuant to Article lA, Chapter 87 of the General Statutes: 

(U "Constructing or altering" includes contracting for 

the construction or alteration of a single-family 

residential dwelling unit. 

W(2) "Dishonest conduct" shall not include a mere breach 

of a contract. 
f^(3) "Incompetent conduct" is conduct which 
demonstrates a lack of ability or fitness to discharge 



a duty associated with undertaking to construct or 
alter a single family residential dwelling or the 
supervision of such construction or alteration. 
f^(4) "Owner or former owner" includes the owner or 
former owner of real property who contracted with a 
general contractor for the construction of a single- 
family residential dwelling unit. "Owner or former 
owner" "H o meowne r " shall not include a person who 
is a spouse child, parent, grandparent, sibling, 
partner, associate, or employee of a general 
contractor whose conduct caused a reimbursable loss. 
In addition, the term h o meowne r shall not include 
general contractors or any financial or lending 
institution. 

(5) "Substantial completion" means that degree of 
completion of a project, improvement or specified 
area or portion thereof whereupon the owner can use 
the same for its intended use. 

(6) "Separately owned residence" means a building 
whose construction is governed by Volume VII of 
the North Carolina State Building Code. 

Authority G.S. 87-15.6. 

.0903 APPLICATION FOR PAYMENT 

(a) Applicants desiring to obtain payment from the fiind 
shall file a verified application with the Board on a prescribed 
form. The form shall require information concerning the 
applicant and the claim including, but not limited to, the 
applicant's name and address, the amount of the claim, a 
description of the acts of the general contractor which constitute 
the grounds for the claim and a statement that all court 
proceedings are concluded or the general contractor has filed 
for bankruptcy. If the applicant has exhausted all civil 
remedies pursuant to G.S. 87-15. 8(1)(3), the application shall 
include certified copies from the civil action of the complaint, 
judgment and remm of execution marked as unsatisfied. If the 
general contractor was a corporation which was dissolved no 
later than one year after the date of discovery by the applicant 
of the facts constituting the dishonest or incompetent conduct, 
and the a pplicant did not commence a civil action against the 
general contractor, then the applicant shall include certified 
copies of documents evidencing the dissolution. If the 
applicant has been precluded from filing suit, obtaining a 
judgment or otherwise proceeding agains t the gene r al con tr acto r 
due to the au t omatic s t ay pr ovisions of Section 362 o f the U.S. 
Bankru p tcy Cod e bankruptcy of the general contractor , then the 
applicant sh o uld shall submit a certified copy of the bankruptcy 
petition and any proof of claim claim, o r o t he r and document 
documents bearing on t he disposi t ion of fu n ds — in t he 
bank r uptcy proceeding. — Ap p lica t ions based upon stays in 
bank r u p tcy w i ll n ot be conside r ed by the Recove r y Fund 
Review — Commi tt ee — tmtii — the — bankruptcy — proceeding — rs 
terminated, from the bankruptcy court or trustee certifying that 
the applicant has not and will not receive any payment from the 
bankruptcy proceeding. 

(b) Requests for the application form shall be directed to the 



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PROPOSED RULES 



Board at the address shown in Rule .0101 of this Chapter. 
Authority G.S. 87-15.6; 87-15.7; 87-15.8. 

.0904 nLING DEADLINE AND SERVICE 

(a) Applicants seeking recovery from the fund shall be 
forever barred unless application is made within one year after 
termination of all proceedings, including appeals, in connection 
with an unsatisfied judgment obtained against a general 
contractor. Claims based upon the au t omatic stay pr ovisions of 
Sec t ion 362 of the U.S. Bank r u pt cy Code bankruptcy or 
dissolution of the general contractor shall be forever barred 
unless application is made within three years from the date of 
discovery by the applicant of the facts constituting the dishonest 
or incompetent conduct or within six years of substantial 
completion of the construction or alteration of the residence in 
question, whichever comes first. 

(b) Applications shall be filed at the address shown in Rule 
.0101 of this Chapter. The Board shall serve a copy of the 
application upon the general contractor who allegedly caused 
the loss. Service shall be accomplished by certified mail, 
return receipt requested, or other methods authorized by G.S. 
150B-38(c). 

Authority G.S. 87-15.6; 87-15.7; 87-15.8. 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Medical Board intends to amend 
rule cited as 21 NCAC 32F .0103. Notice of Rule-making 
Proceedings was published in the Register on December 16, 
1996. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at LOO p.m. on September 
17, 1997 at the N.C. Medical Board, 1203 Front Street, 
Raleigh, NC 27609. 

Reason for Proposed Action: Compliance with NC Session 
Laws 1996 which states fee reduction from $200 - $100 will 
occur January 1997. Resident Training license fee will be 
reduced to $15.00. 

Comment Procedures: All licensees may send written 
comments to the nde-making coordinator through September 
17. 1997. Oral comments may be presented at the public 
hearing. 

Fiscal Note: 772/5 Rule does not affect the expenditures or 
revenues of state or local govemmeru funds. This Rule does not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 



SUBCHAPTER 32F - ANNUAL 
REGISTRATION 

SECTION .0100 - REGISTRATION 

.0103 FEE 

Each physician shall pay a biennial an annual registration fee 
of two one hundred dollars ( S200.00 ) $100.00 to the Board 
every odd numb e red year in accordance with G.S. 90-15.1; 
except, each physician holding a resident's training license shall 
pay a biemiial an aimual registration fee of t wenty five fifteen 
dollars (S25.00 ) ($15.00 ) and every physician who holds a 
special volunteer license shall pay a biennial an annua] 
registration fee of ten dollars (SlO.OO). 

Authority G.S. 90-15.1; 90-18(13); 90-18.1. 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Medical Board intends to adopt 
rule cited as 21 NCAC 32H .0508, amend rules cited as 32H 
.0102, .0201 - .0203, .0301 - .0303, .0401 - .0405, .0407 - 
.0409, .0501 - .0503, .0505 - .0507. .0601 - .0602, .0801, 
.0901, .1004, and repeal 32H .0406, .0504. Notice of Rule- 
making Proceedings was published in the Register on April 15, 
1997. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 1:00p.m. on November 

5, 1997 at the Division of Facility Services Office, 701 Barbour 

Drive, 

Room 201, Raleigh, NC. 

Reason for Proposed Action: These changes will better reflect 
the current trends in the abilities and certification levels ofoiit- 
of-hospital EMS providers nationwide as well as the 
recommendations of EMS providers in North Carolina. 

Comment Procedures: Persons who wish to make written or 
verbal comment regarding these proposed amendments should 
contact: 

Mr. Ed Browning, Education Programs Specialist. NC Office 
of Emergency Medical Services. PO Box 29530. Raleigh, NC 
27626-0530. Tele: (919) 733-2285, FAX: (919) 733-7021. 
Verbal and written comments will be received through the date 
of the public hearing. Persons are encouraged to submit 
written comments by October 1, 1997 to allow adequate time 
for review and consideration by the Board. 

Fiscal Note: These Rules do not have a substantial economic 
impact of at least five million dollars ($5,000,000) in a 12- 
month period. 21 NCAC 32H .0406 and .0504 - affect the 



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expenditures or revenues of local government funds. These 
Rules do not affect the expenditures or revenues of state 
government funds. 21 NCAC 32H .0102, .0201 - .0203, .0301 
- .0303, .0401 - .0405, .0407 - .0409, .0501 - .0503, .0505 - 
.0508, .0601 - .0602, .0801, .0901, .1004 - do not affect the 
expenditures or revenues of state or local government funds. 

SUBCHAPTER 32H - EMERGENCY 

MEDICAL SERVICES ADVANCED 

LIFE SUPPORT 

SECTION .0100 - GENERAL 
INFORMATION 

.0102 DEFINITIONS 

The following definitions apply in this Subchapter: 

(1) "Audit and review panel" means a committee 
composed of representatives of the medical, nursing, 
administrative, county government, and prehospital 
care service elements of an advanced life support 
(ALS) program that has the responsibility for the on- 
going monitoring and evaluation of the program. The 
chairman of the panel shall be a physician and a 
majority of the voting members shall be physicians. 

(2) "Emergency medical t echnician-advanced 

interiutdiate (EMT-AI)" m e ans a person specially 
e duca t ed in a pr o gram a ppro ved by t h e Office o f 
Eme r gency Medical Se r vices wh o has been certified 
or r ece r tified by the N o rth Car o lina Medical Board 
as qualifi e d to render tlie services enumera t ed in Rule 
■0406 of this Subcha p te r . "Medical Crew Member" 
means a physician, registered nurse. EMT- 
paramedic. EMT-intermediate. EMT-defibrillation 
technician, or EMT who holds a current North 
Carolina license or certification and who has 
completed additional training in altitude physiology. 
EMS communications, in-flight emergencies, and 
aircraft and flight safety conducted under the direct 
guidance of the medical director. 

(3) "Emergency medical technician-defibrillation (EMT- 
D)" means a person specially educated in a program 
approved by the Office of Emergency Medical 
Services who has been certified or recertified by the 
North Carolina Medical Board as qualified to render 
the services enumerated in Rule .0407 of this 
Subchapter. 

(4) "Emergency medical technician-intermediate (EMT- 
I)" means a person specially educated in a program 
approved by the Office of Emergency Medical 
Services who has been certified or recertified by the 
North Carolina Medical Board as qualified to render 
the services enumerated in Rule .0403 of this 
Subchapter. 

(5) "Emergency medical technician-paramedic (EMT-P)" 
means a person specially educated in a program 
approved by the Office of Emergency Medical 
Services who has been certified or recertified by the 



North Carolina Medical Board as qualified to render 
the services enumerated in Rule .0402 of this 
Subchapter. 

(6) "Advanced Life Support Professional (ALS 
Professional)" means a certified emergency medical 
dispatcher, emergency medical technician- 
defibrillation, emergency medical technician- 
intermediate, emergency medical t echn i cian-advanc e d 
int e rmediate, or emergency medical technician- 
paramedic whether working on a paid or volunteer 
basis. 

(7) "Medical control" means the management and 
accountability for the medical care aspects of an ALS 
program. It entails physician direction and oversight 
of the initial education and continuing education of 
the ALS professionals; development and monitoring 
of both operational and treatment protocols; 
evaluation of the medical care rendered by ALS 
p ersonnel; professionals: participation in system 
evaluation; and directing, by radio or telephone, the 
medical care rendered by the ALS professionals. 

(8) "Medical director" means the physician responsible 
for the medical aspects of the management of an ALS 
program. 

(9) "Mobile intensive care nurse (MICN)" means a 
registered nurse who has been approved or 
reapproved by the North Carolina Medical Board to 
issue instructions to ALS professionals in accordance 
with protocols approved by the sponsor hospital and 
under the direction of the medical director. 

(10) "Advanced life support program (ALS program)" 
means a program of prehospital emergency medical 
care whereby definitive medical care is delivered to 
a victim of sudden injury or illness by appropriately 
educated and certified ALS professionals operating 
under the direction of a sponsor hospital. All ALS 
programs shall conform to the criteria established in 
the rules contained in this Subchapter and shall be 
approved by the Office of Emergency Medical 
Services. 

(11) "Mobile intensive care unit" means any emergency 
vehicle staffed by ALS professionals and equipped in 
accordance with standards established by the North 
Carolina Medical- Care Commission as found in 10 
NCAC 3M .0202, .0203, .0204, -mS)^ and .0207 to 
provide remote intensive care to sick and injured 
persons at the scene of a medical emergency and 
during transport to a health care facility. 

(12) "Oral interview panel" means a committee composed 
of physicians, ALS professionals certified at or above 
the level of application and may include other 
medical personnel such as registered nurses and 
mobile intensive care nurses involved in the ALS 
program. The responsibility of the oral interview 
panel is to interview each applicant for certification, 
either collectively or individually, and evaluate hw 
the suitability to perform successfully at the 



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PROPOSED RULES 



certification level sought. The panel shall be 
approved by the medical director and consist of a 
minimum of three members including one physician 
and one ALS professional. 

(13) "Office of Emergency Medical Services" means an 

official agency of the State of North Carolina, (23) 

Department of Human Resources, that serves in an 
administrative capacity to the North Carolina 
Medical Board. 

(14) "Physician" means an individual licensed by the (24) 
North Carolina Medical Board to practice medicine 

in the State of North Carolina. 

(15) "Sponsor hospital" means a hospital and its medical 
staff which participates in an ALS program and has 
responsibility for providing or ensuring the provision (25) 
of initial education, continuing education, and 
medical control to the ALS professionals. The 
sponsor hospital shall meet criteria adopted by the 

North Carolina Medical Board and be approved by 

the Office of Emergency Medical Services. (26) 

(16) "Study project" means a proposal involving 
exceptions to the provisions of this Subchapter for 
the purpose of evaluating the efficiency and 
effectiveness of alternate means of providing ALS 
services to the citizens of North Carolina. 

(17) "Blind insertion airway device" means an airway (27) 
adjunct designed to be used as a pharyngeal 
pharyngotracheal or esophageal device which is 
inserted without the use of direct visualization. For 

the purposes of these rules, this definition does not 
include esophageal obturator airways, esophageal 
gastric tube airways, or endotracheal tubes. 

(18) "Coding" means the selection and assignment of an 
alphanumeric classification to a call for medical 
assistance by an EMD. (28) 

(19) "Emergency Medical Dispatcher (EMD)" means a 
trained public safety telecommunicator with 
additional training and specific emergency medical 
knowledge essential for the efficient management of 
emergency medical service communications who has 
successfully completed an education and training 
program meeting the criteria established b\' the 
Office of Emergency Medical Services and who 
functions as an agent or constituent of an Emergency 
Medical Dispatch Program approved by the Office 
of Emergency Medical Services. 

(20) "Emergency Medical Dispatching" means the 
reception and management of requests for emergency 
medical assistance. 

(21) "Emergency Medical Dispatch Program" means the 
approved program with procedures established for 
the management and delivery of emergency medical 
assistance by a public or private agency that sends (1) 
emergency medical assistance to requesting persons 
and provides pre-arrival instructions for a victim of 
sudden injury or illness. (2) 

(22) "Emergency Medical Dispatch Priority Reference 



System (EMDPRS)" means a medically approvec 
written or computer generated reference system usee 
by an emergency medical dispatching agency tc 
provide medical direction, and to dispatch aid tc 
medical emergencies. 
"EMD selection" means the process which 
establishes criteria to identify a candidate for 
education and training as an Emergency Medical 
Dispatcher (EMD). 

"Pre-arrival instructions" means telephone rendered 
medically approved written instructions read by 
emergency medical dispatchers to callers, which help 
provide aid to the victim and control the situation 
prior to patient access by pre-hospital care providers 
"Public Safety Telecommunicator" means an 
individual trained to communicate by electronic 
means with persons seeking emergency assistance 
and with public or private agencies and individuals 
providing such assistance. 

"Approved Teaching Institution" means an agency 
with a current contract with the Office of Emergency 
Medical Services to provide emergency medical 
services tr aining educational programs. Approved 
teaching institutions must meet the criteria m 
accordance with 10 NCAC 3D .1201. 
"Medical Direction Assis t an t (MDA)" "Physician 
Assistant (PA)" means a physician assistant or nu r s e 



pr ac t i t ione r who has been approved or r ea pp roved 
licensed by the North Carolina Medical Board and 
approved by the Office of Emergency Medical 



Services to issue instructions to ALS professionals in 

accordance with protocols approved by the sponsor 

hospital and under the direction of the medical 

director. 

"Nurse Practitioner (NP)" means a nurse practitioner 



who has been licensed by the North Carolina Board 



of Nursing and the North Carolina Medical Board 



and approved by the Office of Emergencv Medical 



Services to issue instructions to ALS professionals in 



accordance with protocols approved by the sponsor 



hospital and under the direction of the medical 
director. 

Authority G.S. 143-514. 

SECTION .0200 - PROGRAM STANDARDS 
AND APPROVAL 

.0201 ADVANCED LIFE SUPPORT 
PROGRAM CRITERIA 

ALS programs shall cover a defined service area and shall 
have the following: 

a plan, as specified in Rule .0302 of this Subchapter, 
for the coordination of the sponsor hospitals 
participating in the program; 
a designated medical director who shall be 
responsible either directly or by clearly established 



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delegation to the other licensed physicians at the 
sponsor hospital(s) for the following: 

(a) the establishment, approval and periodic 
updating of treatment protocols or EMDPRS 
for emergency medical dispatch programs; 

(b) medical supervision of the selection, initial 
education, continuing education and 
performance of the ALS professionals, MICN 
and MB A MICN. physician assistant and 
nurse practitioner personnel; 

(c) the medical review of the care provided to 
patients; 

(d) keeping the care provided current with 
advanced biomedical science and technology; 
and 

(e) participation in the overall management of the 
ALS program in liaison with nursing, 
technical, and administrative staff of the 
program. The medical director shall have the 
authority to suspend temporarily, pending due 
process review, an ALS professional, MICN, 
or — MBA physician assistant or nurse 
practitioner from further participation in the 
ALS program when it is determined the 
activities or medical care rendered by such 
persoimel may be detrimental to the care of 
the patient; 

(3) an organized and defined system of communications 
that provides for: 

(a) public access through a central emergency 
communications center; 

(b) dispatch and coordination of all resources 
(manpower, vehicles and equipment) essential 
to the effective and efficient management of 
requests for emergency medical assistance; 

(c) communications linkages for interacting with 
other public safety agencies to obtain 
additional resources required to support 
emergency medical services activities; and 

(d) two-way voice commimications as specified in 
Rule .0303 (a) (2) (H) of this Subchapter 
between the ALS professionals and the 
persoimel at the sponsor hospital responsible 
for directing the medical treatment rendered 
by the ALS professionals; 

(4) adequate certified manpower to ensure that the 
program will be continuously available on a 24 hour- 
a-day basis; and 

(5) an audit and review panel that meets at a minimum 
on a quarterly basis and whose responsibilities 
include at least the following: 

(a) reviewing ALS cases to determine the 
appropriateness of the medical care rendered 
by all personnel involved in the cases; 

(b) making recommendations to the medical 
director for the continuing education program 
for ALS personnel; and 



(c) reviewing the policies, procedures and 
protocols of the ALS program and making 
recommendations for improvement. 
improvement: and 

(d) making recommendations for consideration by 
the sponsor hospital administratively 
responsible for the program regarding the 
appointment of the medical director. 

Authority G.S. 143-514. 

.0202 PROGRAM APPROVAL 

(a) A complete proposal to establish or expand an ALS 
program must be submitted to the Office of Emergency Medical 
Services at least 60 days prior to the planned field 
implementation or expansion of the p r o g r am, program, and be 
re-approved every four years following initial approval. 

(b) The proposal must demonstrate that the program meets 
the standards found in Rule .0201 of this Section and must 
follow the format specified by the Office of Emergency 
Medical Services. 

Authority G.S. 143-514. 

.0203 APPROVAL REQUIREMENTS: 

EMERGENCY MEDICAL DISPATCHER 
PROGRAM 

(a) All emergency medical dispatching agencies applying the 
principles of EMB or offering EMB services, procedures, or 
programs to the public shall conform to the criteria established 
in the rules contained in this Subchapter and shall submit a 
proposal for program approval to the Office of Emergency 
Medical Services at least 60 days prior to program 
implementation. The proposal must document that the EMB 
program has: 

(1) a defined service area; 

(2) a designated medical director responsible for medical 
supervision of the program in accordance with Rule 
.0201(2)(a)-(e); 

(3) adopted, maintains, and updates on a regular basis, 
a written or computer-based emergency medical 
dispatch priority reference system (EMBPRS) 
approved by the EMB program medical director 
including at least the minimum incident protocols set 
forth in the "Guidelines for the Bevelopment and 
Operation of Emergency Medical Bispatch 
P r og r ams" dated March 1 99 5 ; Programs": 

(4) adequate personnel certified in accordance with the 
requirements of this Subchapter to ensure that the 
program will be continuously available on a 24 hour- 
a-day basis; 

(5) an organized and defined system of communications 
that provides for public access through a central 
emergency communications center using a single 
seven digit telephone number for the service area or 
an emergency 9-1-1 telephone system; 

(6) the ability to dispatch and coordinate all resources, 



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PROPOSED RULES 



such as manpower, vehicles and equipment that are 
essential to the effective and efficient management of 
requests for emergency medical assistance; 

(7) an audit and review panel which meets at a minimum 
on a quarterly basis; 

(8) a formal risk management program including written 
procedures that provide: 

(A) The chain of command for establishment of 
policies, procedures, and resolution of 
conflicts relating to the EMD Program; 

(B) Administrative procedures and written 
protocols for resource allocation and 
alternative response assignments of emergency 
response units; 

(C) EMD responsibilities in special situations, 
such as disasters, multi-causality incidents, or 
situations requiring referral to specialty 
hotlines; 

(D) Complete written and recorded documentation 
of EMD operations that permit timely medical 
audit and review; 

(E) Procedures for selection and processing of 
cases for EMD audit and review. 

(9) adopted and maintains a dispatch coding system 
consistent with the incident protocol types in the 
EMDPRS which categorizes the problem 
determination through the EMDs evaluation of the 
problem or situation; 

(10) provides, maintains, and upgrades on a regular basis, 

all necessary protocols, t raining educational 

equipment, and quality assurance/case review 

equipment and supplies required for operation of the 

EMD program. 

(b) EMD programs shall make application to the Office of 

Emergency Medical Services and be re-approved every four 

years following initial EMD program approval. 

Authority G.S. 143-514. 

SECTION .0300 - HOSPITAL 
UTILIZATION 

.0301 HOSPITAL INVOLVEMENT 

Hospital and hospital medical staff participation in the 
establishment, operation and ongoing evaluation of ALS 
programs is essential. The role of each participating hospital 
within the service area of an ALS program shall be defined, and 
the operational procedures outlined and agreed to by all 
participants so as to help ensure proper coordination. Sponsor 
Hospitals may provide services utilizing ALS p e r s o nnel 
professionals for the delivery of emergency medical care to the 
sick and injured at the scene of an emergency and during 
education of the ALS professionals. While functioning 
pursuant to these Rules, the ALS professionals shall be under 
the control and supervision of the physician, approved MICN 
o r MB A MICN. physician assistant or nurse practitioner of the 
sponsor hospital from which they are receiving instructions. 



Authority G.S. 143-514. 

.0302 PLAN FOR PARTICIPATING HOSPITALS 

(a) Each ALS program shall have a written plan whicl 
outlines the roles and responsibilities of each of the sponso 
hospitals that will function in the program. The plan shal 
allow for the participation of all hospitals within the service 
area of the ALS program that meet the sponsor hospital criteri; 
even though one or more hospitals may choose not tc 
participate at the initiation of the program. One hospital shal! 
be designated in the plan as being administratively responsible 
for the ALS program and as such have overall responsibility foi 
administration and coordination of the program and ensuring 
compliance with the requirements of this Subchapter. Changes 
in this designation shall be approved by the Office oi 
Emergency Medical Services. If participating hospitals cannot 



reach an a greement regarding the designation of the 
administratively responsible sponsor hospital, the Office ol 
Emergency Medical Services shall designate one of the 
hospitals as administratively responsible for the program. This 
designation shall be for one year or until such time as the 
participating hospitals can reach an agreement on the 
designation, whichever is shorter. The Office of Emergency 



Medical Services shall continue an annual appointment of the 
administratively responsible sponsor hospital until the 
panicipating hospitals can reach an agreement on this 
designation. 

(b) The plan shall be approved by the chief of staff and chief 
executive officer of each participating hospital and shall include 
at a minimum: 



H) 



(2) 



(3) 



(4) 



(5) 



(6) 



a description of the role each hospital is to have in 

the ALS program; 

a description of the operational procedures to be 

followed by the ALS professionals, MICN and MDA 

MICN. physician assistant or nurse practitioner 

persormel to obtain medical direction; 

the treatment protocols to be utilized in the program 

and a description of the procedure to be followed to 

modify them; 

a description of how the audit and review function 

will be established and carried out; 

a description of the methodology for providing 

continuing education for the ALS professionals, 

MICN and MDA MICN. physician assistant or nurse 



practitioner personnel; and 

a description of the mechanism for providing 

physician backup to the MICN and MDA MICN. 



physician assistant or nurse practitioner personnel in 
programs where they are utilized. 
(c) The plan shall be approved for a period not to exceed 
four years. At the end of the approval period, the ALS 



program must submit an updated plan meeting the criteria 
specified in Paragraphs (a) and £bj of this Rule. 

Authority G.S. 143-514. 

.0303 SPONSOR HOSPITAL 



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(a) To be approved by the Office of Emergency Medical 
Services as a sponsor hospital, a hospital shall: 

(1) demonstrate that it will function as part of an ALS 
program in accordance with a plan meeting the 
requirements of Rule .0302 of this Section; 

(2) meet all of the following criteria: 

(A) have physician, MICN o r MDA MICN. 
physician assistant or nurse practitioner 
coverage available 24 hours per day in the 
emergency department or critical care unit for 
communication with the ALS professionals; 

(B) ensure 24 hour availability of a registered 
nurse who is primarily responsible to meet 
ALS patients upon arrival at the emergency 
department; 

(C) have a physician available to provide backup 
to the MICN or MDA MICN. physician 
assistant or nurse practitioner issuing 
instructions to the ALS professionals; 

(D) appoint a registered nurse to act as a liaison 
between the ALS professionals and the 
hospital. The nurse liaison shall meet the 
requirements set forth in the "Guidelines for 
the Selection and Performance of the 
Emergency Medical Services Nurse Liais o n" 
dated Oc to ber 1 99 : Liaison": 

(E) appoint a physician to serve as a medical 
director or liaison to the medical director of 
the ALS piogiaiu, program after consideration 
of the recommendation made by the audit and 
review panel: 

(F) have written support letters for the program 
from both the chief executive officer and chief 
of staff of the hospital; 

(G) establish or participate in an audit and review 
panel that meets at a minimum quarterly; 

(H) have access to and operate a communications 
system that will provide, at a minimum, two- 
way voice communications to ALS 
professionals anywhere in the service area of 
the ALS program. The prog r am medical 
director shall verify that, in his o p in i on, that 
the communications system is satisfactory for 
on-line medical control. The communications 
system shall provide for communication from 
the onset of patient treatment through the 
delivery of the patient at the medical treatment 
facility. The communications system shall be 
operational 24 hours per day and shall allow 
for initiation of communication by either the 
ALS professionals or by the sponsor hospital 
that is directing the patient care procedures 
and treatment. Approved first responder 
organizations functioning at the EMT-D level 
of care as part of approved ALS programs are 
exempt from the requirements of this 
Pa r ag r a p h; Paragraph unless utilizing 



medications authorized under locally approved 

protocols requiring voice communication: 

(I) provide orientation regarding the ALS 

program to medical and nursing personnel at 

the hospital who participate in the program; 

(J) have treatment protocols adopted by the 

medical staff covering the performance of 

ALS professionals which are consistent with 

those being used throughout the ALS 

program; 

(K) provide or ensure provision of a continuing 

education program approved by the Office of 

Emergency Medical Services for ALS 

professionals, MICN and MDA MICN. 

physician assistant or nurse practitioner 

personnel; and 

(L) provide or ensure provision of supervised 

clinical experience for those participating in 

the educational program. 

(b) In addition, the sponsor hospital designated as 

administratively responsible for the ALS program shall have a 

physician in the emergency department 24 hours a day who is 

available to give orders and medical direction to the ALS 

professionals. For ALS programs that do not have a 

participating hospital within their area with a physician in the 

emergency department 24 hours a day, this requirement may be 

met by the sponsor hospital designated as administratively 

responsible for the program defining a mechanism to provide 

physician backup to the MICN or MDA MICN. physician 

assistant or nurse practitioner and medical control to the ALS 

professionals. 

Authority G.S. 143-514. 

SECTION .0400 - EDUCATION AND 

PERFORMANCE OF ADVANCED 

LIFE SUPPORT PERSONNEL 

.0401 EDUCATIONAL PROGRAMS 

(a) An educational program intended to qualify personnel as 
ALS professionals, MICNs or MDAs MlCNs. physician 
assistants or nurse practitioners authorized to issue orders to 
ALS personnel shall be approved by the Office of Emergency 
Medical Services. Proposals for educational programs shall be 
submitted for approval at least 20 days prior to the date on 
which the program is scheduled to start. 

(b) ALS professional students may perform the services and 
functions permitted by the rules contained in this Subchapter 
for their certification level during: 

(1) the clinical portion of an approved educational 
program while caring for patients in the sponsor 
hospital or other facility approved by the medical 
director and the Office of Emergency Medical 
Services, provided that the related didactic work has 
been completed and that they are under the direct 
supervision of a physician, MDA physician assistant, 
nurse practitioner, or registered nurse; 



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PROPOSED RULES 



(2) a field internship provided that: 

(A) the related didactic work of an approved 
educational program has been completed; 

(B) they are directly supervised and accompanied 
by an ALS professional certified at a like or 
higher certification level or a physician; and 

(C) the internship is conducted within an ALS 
program approved at the same or higher 
certification level of the educational program. 

Authority G.S. 143-514. 

.0402 EMERGENCY MEDICAL TECHNICIAN- 
PARAMEDIC PERFORMANCE 

EMT-Ps educated in approved programs, certified by the 
Nonh Carolina Medical Board to perform medical acts, and 
functioning in an approved ALS program may do any of the 
following in accordance with the protocols established by their 
sponsor hospital: 

( 1 ) While at the scene of a medical emergency where the 
capability of continuous two-way voice 
communication is maintained with a physician, 
approved MICN or MDA MICN. physician assistant 
or nurse practitioner located in the sponsor hospital, 
and upon order of such physician, MICN o r MDA : 
MICN. physician assistant or nurse practitioner: 

(a) establish an intravenous line in a peripheral 
vein; vein and administe r any of the following 
in t ravenous solutions : 

i^ Dext r ose 5 % in Wa ter; 

-(it) — Lac t at e d Ringe r s Solu t ion: 
(trH — Normal Saline; 
(TV) — D e xt r ose 5% Lac t a te d Ringe r s; 
iyi — Dext ro se 5% h'l Noimal Saline, 
iyr) — Dext r ose 5% 1/4 Noimal Saline, 
(vrt) — Dextrose 10% in Wat er ; and 
(vm) — Dex tr ose 5% Normal Saline; 

(b) obtain blood for laboratory analysis; 

(c) administer in a fashion via a route approved 
by the local program medical director any of 
t he foll o wing medica t ions; intravenous fluid 
or medication specified for use by EMT-Ps 
found in the North Carolina EMS Medication 
Formulary approved by the Office of 
Emergency Medical Services; 
ADVANCED CARDIAC LIFE SUPPORT 
MEDICATIONS; 

(r) At r o p in e ; 

(n) O r c t ylium; 

(mi — Calcium Chlo r ide/Gluc o nate ; 
(tr) Dobu t amine; 

iyi — E p ine p h r ine 1 : 1000 ; 

(rrl E p ine p h r ine 1 : 10,000 ; 

(vril Isoproterenol, 

(vrrii Lidocaine ; 

(txi Sodium Chloride Inj e cti o n ; 

(xi — Procainamide, 



(XT) — Sodium Bicarbonate; and 
(xrr) Do p amine; 

ANESTHETICS: 

(t) Lidocaine 1% o r 2%; 

(n) P r ocaine 1% o r 2%; 

CARDIORESPIRATORY AGENTS: 

(t) — Adenosin e ; 

(tt) — Albuterol (by inhalation); 
(rrr) — Amino p hylline; 
(rr) Furosemidc, 



{ 



(ri Isoetharine (by inlialation); 

(vH — Meta pro te r en o l (by inhala t i o n); 
(vfr) — Nifedi p ine : 
(vttt) Nitroglycerin Sublingual, 



(ht) — Ni t roglycerin Pas t e, 
(x) — P r opranolol ; 
(XT) — Racemic E p inephrine (by inhala t ion). 



(xTT) — Terbu t aline (injec t able or by 



(xm)- 



inhalation); 
V^e r a p amil; 



-and 



OTHER MEDICATIONS: 

(t) — Diazepam Injec t abl e ; 

(tt) — Diph e nhyd r amine Injectabl e ; 

(m) Dex tro se 50%; 

(tt) — Glucagon (Int r amuscular 



-or 



iyf- 



Subcutaneous); 

Heparin (fo r us e wi t h he p arin locks); 



(vt) — IV S ter oid Prepara t ions; 
(rrr) — Mannitol; 
(vTtT) — Naloxone; 

(tx) Pheny t oin Injectable; 

(x) — P r ome t hazine; 
(xt) — Thiamine (in tr amuscular 

intravenous); 

Aspirin; 

Lo r az ep am Injectable; 

Amyl Ni tr i t e (Pearls); 

Flumazenil; 



-or 



(xtt)- 
(xrrr)- 

(XTV)- 

(xrr) — Dext r ose 25%; 
(xvrr) — Keto r olac; 
(xvTTT) — Midazolam; and 

(.XTT) Magnesium Sulfate Injec t able; 

ANALGESICS : 
(t) — M e p er idin e ; 



(d) 

(e) 
(f) 

(F)m 

(h)(£l 
(Dth) 



(tt) — Mo rp hine Sulfate; 
(ttt) — Nalbu p hine Hyd ro chlo r ide ; and 
(tr) — Ni tr ous Oxide (via re s p i r atoiy rou t e) ; 
perform pulmonary ventilation by means of a 
blind insertion airway device or endotracheal 
tube; 

perform defibrillation or cardioversion; 
use gas- p ow e r e d o r hand- p owe r ed nebuli z e r s ; 
decompress a tension pneumothorax by use of 
a catheter-flutter-valve device; 
use positive end expiratory pressure 
respirators; 
perform cricothyrotomy for relief of upper 



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airway obstruction; 
(j)(ii perform gastric suction by intubation; 
(k){i) perform urinary catheterization; 
ffl(k) perform external cardiac pacing; 
(mXi} establish an intraosseous infusion line in 
patients under 60 months 6 years of age and 
use it to administer any intravenous fluid or 
medication specified for use by EMT-Ps found 
in the North Carolina EMS Medication 
Formulary a pproved by the Office of 
Emergencv Medical Services and in t his Rule 
approved by the local program medical 
director for intraosseous infusion; 
hrt(m) adminis t e r — fluids — and — medica t ions using 
previously established indwelling semi- 
permanent central venous catheters^, administer 
any intravenous fluid or medication specified 
for use by EMT-Ps found in the North 
Carolina EMS Medication Formulary 
a pproved by the Office of Emergency Medical 
Services : and 
(tr)(n) place and maintain heparin or saline locks. 
(2) When confronted with serious or life threatening 
clinical situations as defined in the patient care 
protocols established by the sponsor hospital of the 
ALS program and approved by the Office of 
Emergency Medical Services, perform as necessary 
under standing orders any of the following prior to 
contacting the sponsor hospital: 

(a) cardiopulmonary resuscitation; 

(b) defibrillation, cardioversion, or external 
cardiac pacing; 

(c) pulmonary ventilation by means of a blind 
insertion airway device or endotracheal tube; 

(d) establish an intravenous line in a peripheral 

vein. ff — the — in tr aven o us — Knc — is — not 

success f ully established after t w o attempts, t he 
EMT-P shall con t ac t the s po nso r h o s p i t al pr i or 
t o making an ot her a tte m pt ; vein: 

(e) establish an intraosseous infusion line in 
patients under 60 months 6 years of age and 
use it to administer any intravenous fluid or 
medication specified for use by EMT-Ps found 
in the North Carolina EMS Medication 
Formulary a pproved by the Office of 
Emergency Medical Services and in this Rul e 
approved by the local — medical program 
medical director for intraosseous infusion; 

(f) administer t he following m e dications; any 
intravenous fluid or medication specified for 
use by EMT-Ps on the North Carolina EMS 
Medication Formulary approved by the Office 
of Emergency Medical Services and a pproved 
by the medical director for use under standing 
orders: 

fr) Albu t e r ol (by inhalation); 

tir) — D r e t ylium; 



(3) 



m 



ftii) E p ine p hrine 1 : 1000; 

(tv) — E p ineph r ine 1:10,000; 

iy) — Fu r os e mide; 

frr) — Metaproterenol (by inhalation); 
(yrt) — Nitroglycerin; 

(vm) — Terbutaline (injectable or- 

inhala t i o n) ; 

(re) — At rop ine; 



-by 






Dextrosc 50%; 
Lidocaine; 



(xm)- 



Nalox o ne; 

Sodium Bicarbona te . 



(xTv) — Diaze p am Injec t able; 

(xv) — Di p henhyd r amine Injectable; 

(xrt) — Aspirin; 

(xvtt) — Thiamin e (intramuscular 

int r aven o us); 
(xvnt) — Lo r azepam (injectable) ; 



-or 



(xtx) — Dex tr ose 25 % ; 

(rx) — Is o e t ha r ine (by inhala t i o n); 

(xxt) — Midaz o lam; and 
(xxtt) — Magnesium Sulfate Injectable. 
When transporting from one medical facility to 
another a patient who is receiving intravenous 
therapy begun at the transferring facility, and where 
the capability of continuous two-way voice 
communication is maintained with a physician, 
approved MICN o r MDA MICN. physician assistant 
or nurse practitioner located in the sponsor hospital, 
or when meeting the requirements of Rule . 1003 of 
this Subchapter and upon order of such physician, 
MICN or MDA. MICN. physician assistant or nurse 
practitioner . EMT-Ps may maintain intravenous lines 
for the — following — medications; any fluid or 
medication specified for use by EMT-Ps during 
interfacility transports on the North Carolina EMS 
Medication Formulary a pproved by the Office of 
Emergency Medical Services and a pproved by the 
program medical director for use in interfacility 
transfers. 

(a) IV Antib i otics; 

(b^ 
fc)- 



Whole Blood and Com p onents; 
He p a r in D r i p ; 



fd) Magn e sium Sulfate D r ip; 

(e) Ni tr oglyce r in D r i p; 

if) Po t assium Chlo r ide; 

tg) U r okinase; 

(h) St r e p t o kinase ; and 

(t) — Tissue Plasminog e n Activato r . 
When transporting from one medical facility to 
another a patient with critical or life threatening 
clinical situations as defined in the patient care 
protocols established by the sponsor hospital of the 
ALS program, an air ambulance program meeting the 
criteria specified in Rule . 1004 of this Subchapter, or 
a critical care transport program as defined in 10 
NCAC 3D .0807. and where the capability of 



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301 



PROPOSED RULES 



continuous two-way voice communication is 
maintained with a physician approved by the 
program medical director. EMT-P's may: 

(a) upon order of said physician; 

(i) insert a femoral venous line: 
(ii) obtain anerial blood gas samples via 
penpheral artery or pre-existing arterial 
line: 
(iii) perform needle thoracentesis: 
(IV) perform rapid sequence intubation: 
(v) maintain invasive monitoring devices to 
include central venous pressure lines, 
swan ganz catheters, arterial lines, 
intra-ventricular catheters, and epidural 
catheters: and 
(vi) administer any fluid or medication 
specified for use by EMT-Ps during 
critical care transports on the North 
Carolina EMS Medication Formulary 
approved by the Office of Emergency 
Medical Services and approved by the 
program medical director for use in 
critical care transfers. 

(b) perform all the skills of an EMT-P and 
administer all medications approved for use by 
EMT-P's enumerated in hems ( 1 ). (2). and (3) 
of this Rule. 

Authority G.S. 143-514. 

.0403 EMERGENCY MEDICAL TECHNICIAN- 
INTERMEDIATE PERFORMANCE 

EMT-Is educated in approved programs, certified by the 
North Carolina Medical Board to perform medical acts, and 
functioning in an approved ALS program may do any of the 
following in accordance with the protocols established by their 
sponsor hospital: 

(1) While at the scene of a medical emergency where the 
capability of continuous two-way voice 
communication is maintained with a physician, 
approved MICN o r MB A MICN. physician assistant 
or nurse practitioner located in the sponsor hospital, 
and upon order of such physician. MICN o r MBA : 
MICN. physician assistant or nurse practitioner: 

(a) establish an intravenous line in a peripheral 
v e in and adminis t e r any of the following 
intrav e nous solutions : vein: 

tB Bcxt r os e 5 9 f in Wat er: 

trH Lac t at e d Ringe r s Solution; 

tTtr) Normal Saline, 

frr) — Bcx tr ose 5% in Lacta te d Ring e r's; 
fv^ — B c x t ros e 5'^ ' in Normal Saline, 

fn) Bcx tr ose j'r in ' ' ' j Normal Saline, 

(vm Bcxt r ose 5^ ' m 1/4 Nuiiiijl Saline ; and 

(vttH Bcx tr os e 10% in Water; 

(b) perform pulmonary ventilation by means of a 
blind insertion airway d e vic e : device or 



(c) 
(d) 



endotracheal tube: 

obtain blood for laboratory analysis; 
administer in a fashion via a route approvec 
by the local pr ogram medical director any tA 
the following med i ca t ions; intravenous fluii 
or medication specified for use by EMT-I; 



found in the North Carolina EMS Medication 
Formulary approved by the Office oi 
Emergency Medical Services; and 

(Tj Bcxt r ose 50%; 

tit) E p inephrine 1 : 1000; 

irn) Albute r ol (by inhalati o n); 

(iv) — He p arin (fo r use wi t h he p arin locks), 
iy) — Mc t a pr otc r enol (by inhala t ion); 
iyr) Tc r butalinc (injec t able or by 



(vttt- 



inhalation); 
Naloxone; 



(vrrH — As p irin; 
ttx) — Thiamine 



(int r amuscular 



-OI 



t^ 



int r avenous): 
Bcxt r ose 25% ; 



fxi) — Isoetharine (by inliala t ion); 

(xtH Bi p hcnhydramine Injectabl e ; 

(ym) Epinephrine 1:10,000; and 



(xivi Glucagon 



(Intramusculai 



-or 



(e) 



Subcu t aneous), 
place and maintain heparin or saline locks; and 
locks. 



tf^ use gas- p owered or hand- p owe r ed nebulizers 
(2) When confronted with serious or life threatening 
clinical situations as defined in the patient care 
protocols established by the sponsor hospital of the 
ALS program and approved by the Office of 
Emergency Medical Services, perform as necessary 
under standing orders any of the following prior to 
contacting the sponsor hospital: 



(a) 
(b) 

(c) 



(d) 



cardiopulmonary resuscitation; 
defibrillation by means of an automatic or 
semi-automatic defibrillator; 
pulmonary ventilation by means of a blind 
insertion airway device or endotracheal mbc 
only when confronted with a p ulseless n o n- 
b r ea t hing patient; tube: 
establish an intravenous line in a peripheral 
v e in. If — the — int r avenous — Hnc — n — not 



successfully established af t e r two a t tempts, the 



(e) 



EMT-I shall con t act the s p onsor hospital prior 
to makmg anothe r a t tem pt ; vein: 
administer the following medications ' any 
fluid or medication specified for use by EMT 
Is found in the Nonh Carolina EMS 



Medication Formulary approved by the Office 
of Emergency' Medical Services. 

fr) Albute r ol (by inhalation) : 

(TTl Bcxtrose 50%; 

trrH C p m ep hnne 1 : 1000 : 

trr) Mcta pr otc r enol (by inhalation) ; 



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PROPOSED RULES 



(r) — Terbu t aline (injectable or by 

inhalati o n) ; 

iyi) Naloxone : 

(vtt) — Aspirin; 

-or 



(vnt) — Thiamine 



(in tr amuscular 



in t ravenous): 
(tx) — Dextrose 25%; 
(t) — Epinephrine 1 : 10.000; and 
(xt) — Diphenhydramine Injectable. 

(3) When in the presence of an EMT-P o r EMT-AI, 
perform any act listed in this Rule upon direction of 
the EMT-P or EMT-AI as defined by the patient care 
protocols of the ALS program and approved by the 
Office of Emergency Medical Services. 

(4) When transporting from one medical facility to 
another a patient who is receiving intravenous 
therapy be gun at the transferring facility, and where 
the capability of continuous two-way voice 
communication is maintained with a physician, 
approved MICN. physician assistant or nurse 
practitioner located in the sponsor hospital, or when 
meeting the requirements of Rule .1003 of this 
Subchapter and upon order of such physician. 
MICN. physician assistant or nurse practitioner. 
EMT-Is may maintain intravenous lines for any fluid 
or medication specified for use by EMT-Is during 
interfacility transports on the North Carolina EMS 
Medication Formulary a pproved by the Office of 
Emergency Medical Services and approved by the 
program medical director for use in interfacility 
transfers. 

Authority G.S. 143-514. 

.0404 MOBILE INTENSIVE CARE NURSE 
PERFORMANCE 

MICNs currently approved by the North Carolina Medical 
Board, while functioning under the direction of a physician in 
the sponsor hospital of an approved ALS program, may direct 
ALS professionals to perform actions as defined in the adopted 
patient care protocols established by the sponsor hospital for 
that ALS p rogram, program and approved by the Office of 
Emergency Medical Services. All orders issued to ALS 
professionals by MICNs shall be co-signed countersigned by a 
physician. 

Authority G.S. 143-514. 

.0405 ALS PROFESSIONAL PERFORMANCE 
DM THE PRESENCE OF A PHYSICIAN 

When there is a physician licensed to practice medicine 
present at the scene of a medical or traumatic emergency and 
that physician chooses to assume medical responsibility for the 
patient, the ALS professionals at the scene shall: 

(1) require and allow that physician to contact the 
sponsor hospital and the physician who receives the 
call at the sponsor hospital shall make the decision as 



to whether or not the physician on the scene is to be 
allowed to take charge of the patient and give orders; 

(2) if the physician on the scene is allowed to take 
charge, permit that physician's orders to take 
precedence over all other procedures or protocols 
normally utilized within that ALS program; and 

(3) follow the orders of the physician within the limits 
enumerated in Rules .0402. .0403. :e4e6 and .0407 
of this Section. 

Authority G.S. 143-514. 

.0406 EMERGENCY MEDICAL TECHNICIAN: 
ADVANCED INTERMEDIATE 
PERFORMANCE 

EMT-advanccd — intermediates — educated — in — a ppr oved 
programs, ce rt ified by the N or th Car o lina Medical Doai ' d to 
perform medical acts and func t ioning in an a ppro v e d ALS 
pr og r am, may d o any o f t h e foll o wing in acco r dance with the 
prot ocols es t ablished by t hei r s po ns or hos p i t al : 

t+i While a t th e scen e of a medical emergency whe r e th e 

c a p abili t y of c o n t inu o us t wo-way yoice 



c o mmunicati o n is main t ained with a physician, 
ap pr oved MICN o r MDA l o ca t ed in th e s p onso r 
h o s p i t al, and u p on o r de r of such p hysician, MICN or 
M©7«rr 

i p h e ral 



-(a) — es t ablish an int r avenous line in a pe n p 

vein and administe r any of the following 
int r avenous s o lu t i o ns; 
(t) — Dext ro se 5% in Wa t e r ; 
ivr) — Lactated Ringer's Solution; 
(m^ — Normal Saline, 
(iv) — Dex tro se 5% Vi Normal Saline, 
iy) — Dextr o se 5% 1/4 Normal Saline; 

iyt) Dex tro se S% Nuuual Saline, 

(vn) — Dex t rose 10% in Wa t er; and 

(vm) — D e xt ro s e — ^k Lacta te d — Ringer's 

Soluti o n ; 
-(b) — o b t ain blood fo r labo r ato r y analysis; 
(c) — administe r in a fashi o n via a r ou t e a ppr oved 
by the local program medical direc t or any of 
the following medications; 
iy) — Albu t e r ol (by inhala t ion): 
fit^ — A tr o p in e ; 
(m) — Dext ro se 50%; 

(tr) E p inephrine 1:1000; 

(r) E p i n e p h r ine 1 : 10.000; 



iyr) — He p a r in (fo r use with hepai ' in locks); 

(vtr) Lidocaine ; 

(viii) — Metap r ot er enol (by inhalati o n); 



(tx) Naloxone; 

(x) — Sodium Dicai ' bona t e; 

(xt) — Te r butaline (injectable or by 

inhalation); 

(xTt^ Nit r oglyce r in Sublingual; 

(xm) Nit r oglyce r in Paste ; 

(xtv) — Aspirin; 



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303 



PROPOSED RULES 



(TT) — Thiamine 



(intramuscular 



-or 



intravenous): 
(xvi^ — Dextrose 25 % ; 

(xvit) — Diphenhyd r amine Inj e c t able: 

(xvml — Ke tor olac : 
(xnc) — Iso et harme (by inhalation): and 
(tt) — Glucagon (In t ramuscular or 



Subcutaneous): 



^ 



f^ 



pLifoim pulmonary ' ventila t ion by means o 
blind insertion ai r way device or endotracheal 
tube: 

(t) peifoiin denbrilla t ion: 

ff) pei ' foi ' m exte r nal c ardiac p acing : 

-f^) — es t ablish an in tr aosseous infusi o n line in 



p atien t s — und er 
adminis t e r 



^e — months — of — age — and 
— in tr avenous — fhrid — or 



any 

iiiedications approved by the No rt h Carolina 
M e dical B o ard for use by CMT-AIs and 
approved — by — the — l o cal — p rogram — medical 
direc t o r fo r in tr aoss eo us infusi o n: 

fn) administc i — fluids — and — medica t ions — using 

pr eviously — e s t ablished — indwelling — semi- 
peui ' iancnt cen tr al venous catheters: 

(t) use — po si t ive — end — ex p i r a tor y — pr essu r e 

respira tor s: and 
(j^ place and main t ain he p arin or saline locks : 

i^ use gas- p owered or hand- p owered nebulize r s. 

i^ Wh e n c o nfron t ed with se r ious o r life th r ea t enmg 

clinical si t uations as d e fined in the p a t ien t ca r e 

p r o t oc o ls es t ablished by the sponsor hospital of th e 

ALS p r og r am and a ppro ved by the Office of 

Eme r gency Medical Services, perform as n e cessary 

unde r s t anding o r de r s any of the following pr io r t o 

con t acting the s p onsor hospi t al : 

fa^ cardio p ulm o nary r esuscitation; 

•^ defib r illa t ion: 

fc) pulmonary ventila t ion by means of a blind 

ins e r t ion ainvay device or e ndot r ach e al t ub e 
o nly when co nfronted wi t h a p uls e less non- 
breathing pa t ien t ; 

■(d) es t ablish an intravenous line in a peripheral 

v e in. Ff — the — int r avenous — hnc — is — not 

success f ully established aft er two a tt empts, th e 
EMT-AI shall con t ac t the s po nso r hos p ital 
pr i or to making ano t h e r a tt empt. 

-(c) establish an int r aoss e ous infusion line in 

p atients — unde r — 60 — mon t hs — of — agt — and 

adminis t e r any int r avenous fluid or 

medica t ions a ppr oved by the No rt h Cai ' olina 
Medical Board for use by EMT-AI s and 
a ppro ved — by — the — hscal — pr og r am — medical 
direc t or for intraoss e ous infusion; 

ff) adminis t e r the following m e dication s : 

rH Albuterol (by inlialation), 

ftT) At r o p ine ; 

(rrH Dex tro se 509^ 

{rvj Epin ep hrine 1:1000, 



(vtt)- 



E p ine p h r ine 1:10.000; 
Lid o caine; 



Me t aproterenol (by inhala t ion). 



Naloxone, 

Sodium Bicarbonate. 



fxTt- 
(xnt- 
(xm)- 



Te r butalinc — 

inhalation); 

Nitroglycerin; 



(injec t able or b^ 



As p i r in: 
-^Fh 



lamine 



(intramuscular 



(xtr)- 



int r avenous); 
Dext ro se 25%; 



(xr) — Diphenhyd r amine Injec t able, and 
(xyt) Isoe t harine (by inhala t ion). 



(3) When t r ans p o rt ing a p atien t from one incdical facilit> 



t o ano t her wh o is receiving intravenous t herap) 



b e gun a t the t r ansfer r ing facili t y, and where th ( 



capabili t y of continu o us t wo-way roia 



c o mmunication is main t ained wi t h a p hysician 



a ppro v e d MICN or MDA located in the s p ons o i 



hos p i t al, or when mee t ing t he r equirements of Rul e 



.1003 o f this Subcha p te r and upon o r der of such 



physician — oi — MICN, — EMT-AIs — may — maintair 
in tr avenous lines fo r the foll o wing medica t ions. 

fa) Whole Blo o d and C o m p onents; and 

(b) P ot assium Chl o ride. 



(4) When in the presence of an EMT-P. perform any act 



lis t ed in this Rule upon directi o n o f the EMT-P as 



defined by the p a t i e n t care pro t ocols of the ALS 



p rogram and approved by the Office of Emergency 
Medi c al Services. 

Authority G.S. 143-514. 

.0407 EMERGENCY MEDICAL TECHNICIAN- 
DEFIBRILLATION PERFORMANCE 

EMT-Ds educated in approved programs, certified by the 
North Carolina Medical Board to perform medical acts, and 
functioning in an approved ALS program may perform any of 
the following in accordance with the protocols established by 
their sponsor hospital: 

(1) When confronted with a pulseless non-breathing 
patient, perform as necessary under standing orders 
any of the following prior to contacting the sponsor 
hospital: 

(a) defibrillation by means of an automatic or 
semi-automatic defibrillator; 

(b) pulmonary ventilation by means of a blind 
insertion airway device; and 

(c) cardiopulmonary resuscitation. 

(2) When confronted with serious or life threatening 
clinical situations as defined in the patient care 
protocols established by the sponsor hospital of the 
ALS program and approved by the Office of 
Emergency Medical Services. administer 
subcu t aneously 1 : 1000 epine p hrine to ti e at systemic 
alle r gic r eactions under standing orders prior to 



304 



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12:4 



PROPOSED RULES 



contacting the sponsor hospital any fluid or 
medication specified for use by EMT-Ds found in the 
North Carolina EMS Medication Formulary 
approved by the Office of Emergency Medical 
Services . 
(3) While at the scene of a medical emergency where the 
capabilitv of continuous two way voice 
communication is maintained with a physician, 
approved MICN. physician assistant or nurse 
practitioner located in the sponsor hospital, and upon 
order of such physician. MICN. physician assistant 
or nurse practitioner, administer in a fashion 
approved by the program medical director any fluid 
or medication specified for use by EMT-Ds found in 
the North Carolina EMS Medication Formulary 
approved by the Office of Emergency Medical 
Services. 

Authority G.S. 143-514. 

.0408 EMERGENCY MEDICAL DISPATCHER 
PERFORMANCE 

EMDs educated in approved training programs, when 
certified by the North Carolina Medical Board, and while 
functioning in an approved Emergency Medical Dispatch 
program, may do the following in compliance with the 
protocols established in the emergency medical dispatch priority 
reference protocol system approved by the program medical 
director: 

(1) Receive and process calls for medical assistance in a 
standardized manner, using the approved EMDPRS 
protocol to elicit required information for evaluating, 
advising, and treating sick or injured individuals, and 
dispatching an appropriate EMS response. 

(2) Provide pre-arrival instructions to the patient through 
the caller when possible and appropriate to do so 
while functioning in compliance with the EMDPRS. 

Authority G.S. 143-514. 

.0409 PHYSICIAN ASSISTANT OR NURSE 
PRACTITIONER PERFORMANCE 

MDAs Physician assistants and nurse practitioners currently 
approval licensed by the North Carolina Medical Board, Board 
and approved by the Office of Emergency Medical Services. 
while functioning under the direction of a physician in the 
sponsor hospital of an approved ALS program, may direct ALS 
professionals to perform actions as defined in the adopted 
patient care protocols established by the sponsor hospital for 
that ALS program. All orders issued to ALS professionals by 
MDAs physician assistants or nurse practitioners shall be eo= 
signed countersigned by a physician. 

Authority G.S. 143-514. 

SECTION .0500 - CERTIFICATION AND 
APPROVAL REQUIREMENTS FOR 



ADVANCED LIFE SUPPORT PERSONNEL 

.0501 CERTIFICATION REQUIREMENTS: 
EMT-PARAMEDIC 

(a) To become certified as an EMT-P, a person shall meet 
the following c r ite r ia : criteria within one year of the approved 
educational program completion date: 

(1) be currently certified as an emergency medical 
technician in the State of North Carolina; 

(2) be affiliated on a continuous basis with an ambulance 
provider that has been issued a permit by the Office 
of Emergency Medical Se r vices and Services, or an 
approved first responder organization which 
functions as part of an approved ALS program; 

(3) successfully com p lete, — within — one — year — of 
a pp lica t ion, complete an EMT-P educational 
program meeting the requirements of the "North 
Carolina EMT-P Curriculum Ou t line" — dated 
Novembe r — 1 99 0. Outline." If the educational 
program was completed over one year prior to 
application, a person shall submit evidence of 
completion of pertinent continuing education in 
emergency medicine taken in the past year and have 
the continuing education approved by the Office of 
Emergency Medical Services; 

(4) successfully complete a performance evaluation 
conducted under the direction of the medical director 
of the ALS program assessing his- the ability to 
perform the skills and procedures specified in Rule 
.0402 of this Subchapter; 

(5) be recommended for certification upon examination 
by an oral interview panel established by the ALS 
program in which he tlie person is proposing to 
function; 

(6) pass a basic life support practical examination 
approved or administered by the Office of 
Emergency Medical Services; and 

(7) pass the EMT-P written examination administered by 
the Office of Emergency Medical Services. 

fb) Persons holding current certification as an EMT-P with 
the National Registry of Emergency Medical Technicians or in 
another state where the educational and certification 
requirements have been approved for legal recognition by the 
Office of Emergency Medical Services may become certified 
by: 

(1) presenting evidence of such certification for 
verification by the Office of Emergency Medical 
Services; and 

(2) meeting the criteria specified in Subparagraphs 
(a)(1), (a)(2), (a)(4), and (a)(5) of this Rule. 

(c) Certification obtained through legal recognition shall be 
valid for four years or the unexpired term of the certification 
that was used to obtain a certification in this state, whichever 
is shorter. All certifications shall be valid for the period stated 
on the certificate issued to the applicant. This period shall not 
exceed four years. Persons shall be recertified by presenting 
documentation to the Office of Emergency Medical Services 



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305 



PROPOSED RULES 



that they have successfully completed either of the following 
options : the following: 

til OPTION I : 

fAl(l) an ongoing continuing education program under the 
direction of the medical director, meeting the 
requirements of "Guidelines for Continuing 
Education and Performance Evaluation of Emergency 
Medical Services Advanced Life Support Pe r sonnel" 
dated Febmaiy 1 9 88: Personnel:" 
ffii(2) an ALS performance evaluation conducted under the 
direction of the medical director meeting the 
requirements of "Guidelines for Continuing 
Education and Performance Evaluation of Emergency 
Medical Services Advanced Life Support Personnel" 
dated Feb r uaiy 1 9 88 assessing the ability to perform 
the skills specified in Rule .0402 of this Subchapter; 
and 
f€)(3) basic life support practical and CMT-P w r itten 
examinations examination approved or administered 
by the Office of Emergency Medical S er vices, o r 
Services: and 
(4) an EMT-P written examination approved or 
administered by the Office of Emergency Medica] 
Services. 

i^ OPTION II : 

(A) the — cri t eria — specified — in — Subparagra p h 

(c)(1)(A) and (c)(1)(D) of t his Rule ; 

(B) at leas t one basic lif e sup p o r t skills evalua t ion 

following guidelines established by the Oftlcc 
of Eme r gency Medical Services conducted 
unde r the di r ec t ion o f t he medical directo r 
assessing the ability t o pe r foun the skills 
requi r ed of an e merg e ncy medical technician 
as s p ecified by the North Carolina Medical 
Ca r e C o mmission: and 

i€r) at — l e ast on e — EMT-P wri tt en examina t ion 

following guidelines established by the Office 
of Emergency Medical Ser^-ic e s adminis t e r ed 
unde r the di r ection of th e medical di r ect or in 
com p liance wi t h the t es t s p ecifica t ions of the 
sta t e EMT-P wri t ten examina t ion. 

Authority G.S. 143-514. 

.0502 CERTinCATION REQUIREMENTS: 
EMT-INTERMEDIATE 

(a) To become cenified as an EMT-I a person shall meet the 
following c r ite r ia: criteria within one year of the appro\'ed 
educational program completion date: 

(1) be currently certified as an emergency medical 
technician in the State of North Carolina; 

(2) be affiliated on a continuous basis with an ambulance 
provider that has been issued a permit by the Office 
of Emergency Medical Se r vices and Services, or an 
approved first responder organization which 
functions as part of an approved ALS program: 

(3) successfully complete. — within — one — yeai — of 



application, complete an EMT-I educational prograi 
meeting the requirements of the "North Carolin 
EMT-I Curriculum Outline" da t ed November 1 99 
Outline. " If the educational program was complete 
over one year prior to application, a person sha 
submit evidence of completion of pertiner 
continuing education in emergency medicine taken i 
the past year and have the continuing educatio 
approved by the Office of Emergency Medicc 
Services; 

(4) successfully complete a performance evaluatio 
conducted under the direction of the medical directo 
of the ALS program assessing his the ability t( 
perform the skills and procedures specified in Rul 
.0403 of this Subchapter; 

(5) be recommended for certification upon examinatioi 
by an oral interview panel established by the AL 
program in which he the person is proposing t( 
function; 

(6) pass a basic life support practical examinatioi 
approved or administered by the Office 
Emergency Medical Services: and 

(7) pass the EMT-I written examination administered b) 
the Office of Emergency Medical Services. 

(b) Persons holding current certification as an EMT-I wit! 
the National Registry of Emergency Medical Technicians or ir 
another state where the educational and certificatior 
requirements have been approved for legal recognition by thi 
Office of Emergency Medical Services may become certifiec 
by: 

(1) presenting evidence of such certification foi 
verification by the Office of Emergency Medical 
Services; and 

(2) meeting the criteria specified in Subparagraph; 
(a)(1), (a)(2), (a)(4), and (a)(5) of this Rule. 

(c) Certification obtained through legal recognition shall be 
valid for four years or the unexpired term of the certification 
that was used to obtain a certification in this state, whichever 
is shorter. All certifications shall be valid for the period stated 
on the certification issued to the applicant. This period shall 
not exceed four years. Persons shall be recertified by 
presentmg documentation to the Office of Emergency Medical 
Services that they have successfully completed either of the 
following op tions : the following: 

(1) '^ OPTION 1 : 

fM(l) an ongoing continuing education program under the 
direction of the medical director, meeting the 
requirements of "Guidelines for Continuing 
Education and Performance Evaluation of Emergency 
Medical Services Advanced Life Support Pc r so r mel" 
dated Feb r uary 1 9 88; Persormel": 

f&)(2) an ALS performance evaluation conducted under the 
direction of the medical director meeting the 
requirements of "Guidelines for Continuing 
Education and Performance Evaluation of Emergency 
Medical Services Advanced Life Support Personnel" 
dated February 1 9 88 assessing the ability to perform 



306 



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August 15, 1997 



12:4 



PROPOSED RULES 



mil 



{4} an 



t2)- 



the skills specified in Rule .0403 of this Subchapter; 

and 

basic life support practical and CMT-I wri t ten 

e xamina t i o ns examination approved or administered 

by the Office of Emergency Medical Services; or and 

an EMT-I written examination approved or 

administered by the Office of Emergency Medical 

Services. 

OPTION II. 

(A) the — cri t eria — specified — in — Subparagraph 

(c)(1)(A) and (c)(1)(D) o f this Rule; 
a t least o ne basic life supp o r t skills evalua t ion 
f oll o wing guidelines es t ablished by the Office 
of Emergency Medical Se r vices c o nduc t ed 
under the di r ecti o n o f t he medical di r e ctor 
assessing t he abili t y t o pe r form the, skills 
required of an emergency medical te chnician 
as s p ecified by t he N ort h Car o lina Medical 
Car e Commissi o n; and 
-at — l e ast o ne — EMT-I — written examina t i o n 



m- 



(€)- 



o ne 

fo llowing guidelines es t ablished by t he Office 
o f Eme r gency Medical Se r vices administe r ed 
under the direc t i o n o f the medical director in 
c o mpliance with the tes t s p ecificati o ns o f t he 
sta t e EMT-I wri t ten examina t i o n. 



Authority G.S. 143-514. 

.0503 APPROVAL REQUIREMENTS: MOBILE 
INTENSIVE CARE NURSE 

(a) To be approved as a MICN, a person must meet the 
following crit e ria: criteria within one year of the approved 
educational p ro gram completion date: 

(1) be currently licensed as a registered nurse in the State 
of North Carolina; 

(2) be affiliated on a continuous basis with a sponsor 
hospital which is part of an approved ALS program; 

(3) have a minimum of two years emergency or critical 
care nursing experience, or a combination of this 
experience; 

(4) present evidence of successful completion of a MICN 
educational program meeting the requirements of the 
"North Carolina MICN Curriculum Outlin e " da t ed 
N o vembe r 1 99 inco rp orated he r ein by r efe r ence 
including subsequent amendmen t s and editions. 
Outline." If the educational program was completed 
over one year prior to application, a person must 
submit evidence of completion of pertinent 
continuing education in emergency medicine taken in 
the past year and have the continuing education 
approved by the Office of Emergency Medical 
Services; and 

(5) be recommended by the medical director of the ALS 
program after determining that the applicant is 
adequately familiar with the patient care and 
operational protocols of the ALS program. 

(b) Approval shall be valid for a period not to exceed four 



years at which time the person may be reapproved by 
successfully completing an approved MICN reapproval 
program under the direction of the medical director, meeting 
the requirements of "Guidelines for Rea ppr oval 
A pproval/Reapproval of Mobile Intensive Care Nu r ses" dated 
May — 1 99 2 incor p o r a t ed — he r ein — by — reference — including 
subsequent amendments and editions. Nurses." 



Authority G.S. 143-514. 

.0504 CERTinCATION REQUIREMENTS: 
EMT-ADVANCED INTERMEDIATE 

(a) T o become ce r tified as an EMT-AI a pe r son shall mee t 
the f o llowing c r i t eria: 

tH be cu rr ently ce r tified as an eme r gency medical 

technician in the S t a t e of No r th Carolina; 
(2) — be affilia t ed on a con t inuous basis with an ambulance 

pro vide r that has been issued a p e rmit by the Office 

of Em er gency Medical SeiTJces and functions as p ar t 

of an a ppr oved ALS pr og r am; 
(3) successfully — com p lete, — wi t hin — one — year — of 

application, — an — CMT-AI — educational — program 



meeti 



ing the requirements o f the "No r th Carolina 
EMT-AI Cu rr iculum Ou t line" dated November 1 99 0. 
If t he educa t ional p rog r am was com p leted o ve r o ne 
y e a r pr io r to a pp lication, a p erson shall submi t 
evidence of comple t ion o f p e rt inent con t inuing 
educa t ion in em er g e ncy medicine taken in the p as t 
year and have t he continuing education ap pr oved by 
the Office of Eme r gency Medical S e rvic e s; 

(4) successfully — com p l e t e a p erformance evalua t ion 

conducted under the di r ec t ion o f t he medical di r ec t o r 
o f the ALS program assessing his abili t y to perform 
th e skills and p r oc e dur e s sp e cifi e d in Rul e .0406 of 
t his Subcha pt e r ; 

(5) b e re commended for certifica t ion upon e xamination 

by an or al inte r view p anel es t ablished by the ALS 
p rog r am in which he is pr o p osing to fiinction; 
p ass a basic life su pp o rt pr actical examina t ion 
a pp roved — or — adminis t ered — by — the — Offic e — of 
Eme r gency Medical Se r vices; and 

(?) p ass the EMT-AI w r itten examination administe r ed 

by t he Office of Emergency Medical Sei - vices. 



(6)- 



(tr) — Persons holding cu rr ent ce rt ifica t ion equivalent to an 
EMT-AI wi t h the Na t ional Regis tr y of Eme r g e ncy Medical 
Technicians o r in anothe r s t a t e whe r e the educational and 
ce r tification — r equi r ements — have — been — approved — for — l e gal 
re c o gnition by th e Office of Emerg e ncy Medical Se r vices may 
become c e rtified by: 



W- 



-of — sttch — certifica t ion — for 



pr esen t ing — evidence — ot — sttcft — eerttt 
ve r ificat i on by the Office of Eme r gency Medical 
Se r vices: and 



t2)- 



mee t ing th e c r it er ia s pe cifi e d in Sub p arag r a p hs 

(a)(1), (a)(2). (a)(4), and (a)(5) of t his Rule. 

(c) Certifica t ion obtained t hrough legal r ecognition shall be 

valid fo r fou r y e ars o r the unexpired t e ii i i of the certification 

tha t was used t o obtain a ce r tifica t i o n in this state, whicheve r 



12:4 



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August 15, 1997 



307 



PROPOSED RULES 



is sho rt e r . All certifications shall be valid for the p e riod s t a t ed 
on the cei t ifica t e issued to the a pp li c ant. This p e ri o d shall n ot 
e xceed four years. Pe r s o ns shall be re ce r tified by pr esen t ing 
documenta t ion to t he Office of eme r gency Medical Services 
tha t they have successfully completed eithe r of the foll o wi r 



mg 



options : 

i^ OPTION 1 : 

(7*c) — an ongoing con t inuing education p rog r am 
under the direc t ion of the medical di r ec t o r , 
meeting t he requi r emen t s o f "Guidelines for 
Con t inuing — Educa t ion — and — Performance 
evalua t ion of Eme r g e ncy Medical Se r vi c es 
Advan c ed — Life Support — Pe r sonnel" — da te d 
Eebmary 1 9 88; 

(B) an AL5 performance evalua t ion conducted 

unde r the di r ection of t he m e dical di r ecto r 
mee t ing t he requiremen t s of "Guidelines fo r 
Continuing — Educa t ion — and — Performance 
Evalua t ion of Eme r g e ncy Medical Se r vices 
Advanced — brfc — Su pp o r t — Pe r sonnel" — dated 
eebmary 1 9 88 asscssiiig t he ability to perfoim 
the skills specified in Rule .0406 of t his 
Subcha pt er: and 

(€^ basic life suppor t practical ajid EMT-AI 

wri t ten examina t ions adminis t e r ed by the 
Office o f Emergency Medical Se r vices: or 
m OPTION IE 

^ the — c r ite r ia — s p e c ified — in — Subparagra p h 

(c)( 1 )(A) and ( c )( 1 )(D) of t his Rule: 

t&) at least o n e basic lif e su pp o rt skills evalua t ion 

following guidelin e s es t ablished by t he Office 
of Emergency Medical Se r vi c es and conduc t ed 
unde r t he direc t ion of the medical di r ec t o r 
assessing the ability to p erform the skills 
r equi r ed of an eme r gen c y m e dical t echnician 
as specified by t he No r th Carolina Medical 
Care Commission: and 

(€) a t least one EMT-Al w r i t ten examina t ion 

f o llowing guidelin e s established by the Office 
of — Em e rg e ncy — Medical — Se r vices — and 
adminis t e re d — unde r — the — dir e c t ion — of th e 
medical di r ect o r in com p lianc e with t he tes t 
s p ecifica t ions of the sta t e EMT-Al w r it t en 
examina t ion. 

Authority G.S. 143-514. 

.0505 CERTinCATION REQUIREMENTS: 
EMT-DEHBRILLATION 

(a) To become certified as an EMT-D a person shall meet 
the following cri t eria: criteria within one year of the approved 
educational program completion date: 

(1) be currently certified as an emergency medical 
technician in the State of North Carolina: 

(2) be affiliated on a continuous basis with an ambulance 
provider that has been issued a permit by the Office 
of Emergency Medical Services, or an approved first 



responder organization which functions as part of ai 
approved ALS program; 

(3) successfully c o m p le te . — within — one — year — cr 
a pp licati o n, complete an EMT-D educationa 
program meeting the requirements of the "Nortl 
Carolina EMT-D Curriculum Ou t line" — datet 
N o vembe r — 1 99 0. Outline." If the educationa 
program was completed over one year prior tc 
application, a person shall submit evidence o: 
completion of pertinent continuing education ir 
emergency medicine taken in the past year and have 
the continuing education approved by the Office ol 
Emergency Medical Services; 

(4) successfully complete a performance evaluation 
conducted under the direction of the medical director 
of the ALS program assessing his the ability to 
perform the skills and procedures specified in Rule 
.0407 of this Subchapter; 

(5) pass a basic life support practical examination 
approved or administered by the Office of 
Emergency Medical Services; and 

(6) pass the EMT-D written examination administered by 
the Office of Emergency Medical Services. 

(b) Persons holding current certification equivalent to EMT- 
D with the National Registry of Emergency Medical 
Technicians or in another state where the educational and 
certification requirements have been approved for legal 
recognition by the Office of Emergency Medical Services may 
become certified by: 

(1) presenting evidence of such certification for 
verification by the Office of Emergency Medical 
Services; and 

(2) meeting the criteria specified in Subparagraphs 
(a)(1), (a)(2), (a)(4), and (a)(5) of this Rule. 

(c) Certification obtained through legal recognition shall be 
valid for four years or the unexpired term of the cenification 
that was used to obtain a certification in this state, whichever 
is shorter. All certifications shall be valid for the period stated 
on the certificate issued to the applicant. This period shall not 
exceed four years. Persons shall be recertified by presenting 
documentation to the Office of Emergency Medical Services 
that they have successfully completed cithe r of the following 
o p tions : the following: 

Hi OPTION I : 

fA-»(l) an ongoing continuing education program under the 
direction of the medical director, meeting the 
requirements of "Guidelines for Continuing 
Education and Performance Evaluation of Emergency 
Medical Services Advanced Life Support P er so r mel" 
dated Eebrua i y 1 9 88; Personnel": 

tB)£2j an ALS performance evaluation conducted under the 
direction of the medical director meeting the 
requirements of "Guidelines for Continuing 
Education and Performance Evaluation of Emergency 
Medical Services Advanced Life Support Personnel" 
dated Eebmary 1 9 88 assessing the ability to perform 
the skills specified in Rule .0407 of this Subchapter; 



308 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



PROPOSED RULES 



and 
(e)£ll basic life suppon practical and EMT-D w r i t ten 

examina t i o ns examination a pproved or administered 

by the Office of Emergency Medical Services; or and 
(4) an EMT-D written examination a pproved or 

administered bx the Office of Emergency Medical 

Services. 
(2) — OPTION II: 

(A) the — criteria — specified — in — Subparag r a p h 

(c)(1)(A) and (c)(1)(D) o f this Rule ; 

(B) — a t leas t o ne basic life supp o r t skills evalua t i o n 
foll o wing guidelines established by t he Office 
of Enicrgtiicy Medical Services and c o ndu cte d 
under the directi o n o f the medical direc to r 
assessing the abili t y t o p crfuuii tlit skills 
required o f an eme r gency medical technician 
as specified by the N o rth Car o lina Medical 
Care C o mmission; and 

(O at least one EMT-D w r it t en examinati o n 

f o llowing guidelines es t ablished by the Office 
of — Emergency — M e dical — Services — and 
administe r ed — under — the — direction — of the 
medical di r ec tor in compliance with the t est 
specifica t i o ns o f t he s t ate EMT-D w r it t en 
examinati o n. 

Authority G.S. 143-514. 

.0506 CERTinCATION REQUIREMENTS: 

EMERGENCY MEDICAL DISPATCHER 

(a) To become certified as an EMD, a person shall meet the 
following c r i t eria : criteria within one year of the a pproved 
educational program completion date: 

(1) be at least 18 years of age; 

(2) be affiliated on a continuous basis with an emergency 
medical dispatch program approved by the Office of 
Emergency Medical Services; 

(3) successfully complete, within one year prior to 
application, an American Heart Association (AHA) 
Level "C" cardiopulmonary resuscitation (CPR) 
course including adult and infant CPR or equivalent; 

(4) successfully c o m p le t e, within one year prior t o 
application, complete an approved EMD educational 
program meeting the requirements of the "Guidelines 
for Development and Operation of Emergency 
Medical Dispatch Programs" dated March 1 99 5. 
Programs." If the educational program was 
completed over one year prior to application, a 
person shall submit evidence of completion of 
pertinent continuing education in emergency medical 
dispatch taken in the past year and have the 
continuing education approved by the Office of 
Emergency Medical Services; 

(5) successfully complete an evaluation conducted under 
the direction of the medical director of the EMD 
program assessing the ability to perform the skills 
and procedures specified in Rule .0408 of this 



Subchapter; and be recommended for certification 
examination. 
(6) pass the EMD written examination administered or 
approved by the Office of Emergency Medical 
Services. 

(b) Persons holding current cenification equivalent to EMD 
where the educational and certification requirements have been 
approved for legal recognition by the Office of Emergency 
Medical Services may become certified by: 

(1) presenting evidence of such certification for 
verification by the Office of Emergency Medical 
Services; and 

(2) meeting the criteria specified in Subparagraphs 
(a)(1), (a)(2), (a)(3), and (a)(5) of this Rule. 

(c) Certification obtained through legal recognition shall be 
valid for four years or the unexpired term of the certification 
that was used to obtain a certification in this state, whichever 
is shorter. All certifications shall be valid for the period stated 
on the cenificate issued to the applicant by the Office of 
Emergency Medical Services. This period shall not exceed four 
years. Persons shall be recertified by presenting documentation 
to the Office of Emergency Medical Services that they have 
successfully completed eithe r o f t he f o ll o wing o ptions: the 
following: 

i^ OPTION I : 

fA^(l) an ongoing continuing education program under the 
direction of the medical director, meeting the 
requirements of "Guidelines for Development and 
Operation of Emergency Medical Dispatch 
P ro g r ams" dated March 1 99 5; Programs": 
f&»(2) an EMD performance evaluation conducted under the 
direction of the medical director meeting the 
requirements of "Guidelines for Development and 
Operation of Emergency Medical Dispatch 
Programs" da t ed March 1 99 5 assessing the ability to 
perform the skills specified in Rule .0408 of this 
Subchapter; and 
f€)(3) an EMD written examination a pproved or 
administered by the Office of Emergency Medical 
Se r vices ; or Services. 
m OPTION II: 

(t^ the — criteria — s pec ified — in — Subparagraph 

(c)( 1 )(A) and (c)( 1 )(D) o f this Rule; 
(B) a written examinati o n f o llowing guidelines 
established by — the — Office of Emergency 
Medical Se r vic e s and administered under t he 
direction of the medical director in compliance 
wi t h the t est specifications of the state CMD 
writ te n examina t i o n . 

Authority G.S. 143-514. 

.0507 APPROVAL REQUIREMENTS: 

PHYSICIAN ASSISTANT AND NURSE 
PRACTITIONER 

(a) To be approved as a MDA. physician assistant or nurse 
practitioner, a person shaH must meet the following c r i t e r ia : 



, 12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



309 



PROPOSED RULES 



criteria within one year of the a pproved educational program 
completion date: 

(1) be currently approved and regis t e r ed licensed as a 
physician assistant or nurse practitioner in the State 
of North Carolina; 

(2) be affiliated on a continuous basis with a sponsor 
hospital which is part of an approved ALS program; 

(3) have a minimum of two years emergency or critical 
care experience, or a combination of this experience; 

(4) present evidence of successful completion of a MDA 
physician assistant or nurse practitioner educational 
program meeting the requirements of the "North 
Carolina MDA Physician Assistant and Nurse 
Practitioner EMS Curriculum Ou t line" — da t ed 
November — 1 99 5. Outline." If the educational 
program was completed over one year prior to 
application, a person shall submit evidence of 
completion of pertinent continuing education in 
emergency medicine taken in the past year and have 
the continuing education approved by the Office of 
Emergency Medical Services; and 

(5) be recommended by the medical director of the ALS 
program after determining that the applicant is 
adequately familiar with the patient care and 
operational protocols of the ALS program. 

(b) Approval shall be valid for a period not to exceed four 
years at which time the person may be reapproved by 
successfully completing an approved MDA physician assistant 
or nurse practitioner reapproval program under the direction of 
the medical director, meeting the requirements of "Guidelines 
for Rea ppr oval — of Medical — Direc t ion — Assis t ants ' — dated 
November 1 99 5. Approval/Reapproval of Physician Assistants 
and Nurse Practitioners Functioning In EMS Programs." 

Authority G.S. 143-514. 

.0508 AEROMEDICAL MEDICAL CREW 
MEMBERS 

All medical crew members, including speciality teams shall 
meet, at a minimum, the following criteria; 

(1) Fly an average of at least five missions per month p er 
six month period or complete refresher education in 
aircraft safety every six months: and 

(2) Complete refresher education in aircraft safety on an 
annual basis. 

Authority G.S. 143-514. 

SECTION .0600 - ENFORCEMENT 

.0601 GROUNDS FOR DENIAL, SUSPENSION, 
OR REVOCATION 

(a) The North Carolina Medical Board may deny, suspend 
or revoke the approval of an ALS program, HMD program, or 
sponsor hospital for any of the following reasons: 

(1) failure to comply with the requirements as found in 
Sections .0200 and .0300 of this Subchapter; or 



(2) obtaining approval through fraud 

misrepresentation. 

(b) The North Carolina Medical Board may deny, suspenc 

or revoke the certification of an ALS professional or th( 

approval of a MICN o r MDA MICN. physician assistant o: 

nurse practitioner for any of the following reasons: 



( 



(1) 



(2) 
(3) 



(4) 



(5) 



(6) 



(7) 

(8) 
(9) 



(10) 



(11) 



failure to comply with the applicable performanc( 
and certification and approval requirements as founc 
in this Subchapter; 
immoral or dishonorable conduct; 
making false statements or representations to thf 
North Carolina Medical Board or the Office o; 
Emergency Medical Services or willfully concealin 
of material information in cormection with ai 
application for certification or approval, 
being unable to perform as an ALS professional 
MICN or MDA MICN. physician assistant or nurse 
practitioner with reasonable skill and safety to 
patients and the public by reason of illness 
drunkenness, excessive use of alcohol, drugs 
chemicals, or any other type of material or by reason 
of any physical or mental abnormality; 
improfessional conduct, including but not limited to 
a failure to comply with the rules relating to the 
proper function of an ALS professional, MICN o r 
MDA MICN. physician assistant or nurse 



practitioner contained in this Subchapter or the 
performance of or attempt to perform a procedure 
which is detrimental to the health and safety of a 
patient or which is beyond the scope and 
responsibility of the ALS professional, MICN o r 
MDA; MICN. physician assistant or nurse 
practitioner: 

conviction in any court of a crime involving moral 
turpitude, a conviction of a felony, or conviction of 
a crime involving the function of an ALS 
professional, MICN o r MDA; MICN. physician 



assistant or nurse practitioner; 
by false representations obtaining or attempting to 
obtain money or anything of value from a patient; 
adjudication of mental incompetence; 
lack of professional competence to practice with a 
reasonable degree of skill and safety for patients 
including but not limited to a failure to perform a 
prescribed procedure, failure to perform a prescribed 
procedure competently or performance of a 
procedure which is not within the scope of official 
duties of the ALS professional, MICN o r MDA ; 
MICN. physician assistant or nurse practitione r; 
failure to respond within a reasonable period of time 
and in a reasonable manner to inquiries from the 
North Carolina Medical Board or the Office of 
Emergency Medical Services concerning any matter 
relating to the practice of an ALS professional, 
MICN o r MDA: MICN. physician assistant or nurse 
practitioner: 
testing positive for substance abuse by blood, urine 



310 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



PROPOSED RULES 



or breath testing while on duty as an ALS 
professional, MICN or MDA ; MICN. physician 
assistant or nurse practitioner: or 
(12) representing or allowing others to represent that the 
ALS professional, MICN o r MDA MICN. physician 
assistant or nurse practitioner is a physician or 
otherwise has a certification or approval that the ALS 
professional, MICN or MDA MICN. physician 
assistant or nurse practitioner does not in fact have. 

Authority G.S. 143-514. 

.0602 PROCEDURES FOR DENIAL, 

SUSPENSION, OR REVOCATION 

(a) The North Carolina Medical Board may deny, suspend 
or revoke the certification of an ALS professional or the 
approval of a MICN, MDA, physician assistant, nurse 
practitioner, sponsor hospital, EMD program or ALS program 
in accordance with Article 3A of G.S. 150B. 

(b) Notwithstanding Paragraph (a) of this Rule, the North 
Carolina Medical Board may summarily suspend the 
certification of an ALS professional, the approval of a MICN, 
MDA, physician assistant, nurse practitioner, sponsor hospital, 
EMD program or ALS program as specified in G.S. 150B-3(c). 

Authority G.S. 143-514. 

SECTION .0800 - FORMS 

.0801 REQUIRED FORMS A>fD DOCUMENTS 

(a) The following forms are required for certification or 
approval : 

(1) Certification Application Form; 

(2) ALS Personnel Verification Form; 

(b) The following documents are required for educational 
and evaluation programs and incorporated herein by reference 
including subsequent amendments and editions. Copies of 
these documents are available free of charge from the Office of 
Emergency Medical Services, PC Box 29530, Raleigh, NC 
27626-0530: 

(1) "North Carolina EMT-P Curriculum Outline" da t ed 
Novembe r 1 99 0: Outline": 
"No r th Car o lina EMT-AI Cu rr iculum Outline" da t ed 



f3)£2i 
W£3i 



November 1 99 0; 

"North Carolina EMT-I Curriculum Outline" dat e d 

November 1 99 0. Outline": 

"North Carolina EMT-D Curriculum Ou t lin e " dat e d 

Novembe r 1 99 0: Outline": 

"North Carolina MICN Curriculum Ou t line" da t ed 

November 1 99 Outline": 

"Guidelines for Continuing Education and 

Performance Evaluation of Emergency Medical 

Services Advanced Life Support Pe r sonnel" dat e d 

rebmai - y 1 9 88. Personnel": 

"Guidelines for Rea ppr oval A pproval/Reapproval of 

Mobile Intensive Care Nu r ses" da t ed Novembe r 

i^93t Nurses": 



W(7) "Guidelines for the Selection and Performance of the 

Emergency Medical Services Nurse Liais o n" dated 

Oc to be r 1 99 0: Liaison": 
(9)£8i "Guidelines for Development and Operation of 

Emergency Medical Dispatch P r ograms" — dated 

March 1 99 5: Programs": 
HQ^(9) "North Carolina MDA Physician Assistant and Nurse 

Practitioner Curriculum Ou t line" da t ed November 

1 99 5: and Outline": 
ft- H(lO) "Guidelines for Rea p proval A pproval/Reapproval of 

M e dical Dii r ction Assistan t s" da t ed N o vember 1 99 5. 

Physician Assistants and Nurse Practitioners 

Functioning In EMS Programs": 

(11) "Guidelines for Continuing Education and 
Performance Evaluation of Early Defibrillation 
Responders": and 

(12) "North Carolina EMS Medication Formulary." 

Authority G.S. 143-514. 

SECTION .0900 - STUDY PROJECTS 

.0901 CONDITIONS 

(a) Persons proposing to undertake a study project shall have 
a project director who is a physician licensed to practice 
medicine in the State of North Carolina and shall submit a 
written proposal to the Office of Emergency Medical Services 
for presentation to the North Carolina Medical Board. The 
proposal shall include the following: 

(1) a description of the purpose of the project, an 
explanation of the proposed project, the methodology 
to be used in implementing the project, and the 
geographical area to be covered by the proposed 
project; 

(2) a list of the ALS programs, EMD programs. 
ambulance providers, and hospitals participating in 
the project; 

(3) a signed statement of endorsement from the medical 
director of each participating ALS program, EMD 
program, the chief executive officer of each 
participating hospital, and the director of each 
participating ambulance provider; 

(4) a description of the skills to be utilized by the ALS 
professionals if different from those specified in this 
Subchapter, the provisions for training and 
supervising the personnel who are to utilize these 
skills and the names of such personnel; and 

(5) the name and signature of the project director 
attesting to his the approval of the proposal. 

(b) The hospitals and ambulance providers participating in 
the project shall be a part of an approved ALS program. 

(c) The time period for the project shall not exceed three 
years. 

Authority G.S. 143-514. 

SECTION .1000 - MEDICAL CONTROL 



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311 



PROPOSED RULES 



.1004 AIR AMBULANCE PROGRAM 
CRITERIA 

(a) Air ambulance programs operating under the authority of 
10 NCAC 3D .0801(b)(4)(B) must submit a proposal for 
program approval to the Office of Emergency Medical Services 
at least 60 days prior to field implementation. The proposal 
must document that the program has: 

(1 ) a defined service area; 

(2) a physician medical director responsible for: 

(A) the establishment and updating of treatment 
and transfer protocols: 

(B) medical supervision of the selection, 
education, and performance of medical crew 
members as defined in 10 NCAC 3D .1204; 
Rule .0102(2) of this Subchapter: 

(C) the medical review of patient care; and 

(D) medical management of the program. Pending 
formal review, the The medical director may 
temporarily sus p end suspend, pending due 
process re\iew, from t he program any medical 
crew member whose actions or medical care 
are determined to be detrimental to patient 
care: 

(3) adequate medical crew members educated, in 
accordance with 10 NCAC 3D .1204, Rule .0508 of 



this Subchapter, to ensure that the program will bi 
continuously available on a 24 hour-a-day basis; 

(4) an audit and review panel which meets at a rmnimun 
on a quarterly basis to: 

(A) review cases and determine thi 
appropriateness of medical care rendered; 

(B) make recommendations to the medical directoi 
about the continuing education needed b) 
medical crew members; and 

(C) review and revise policies, procedures, anc 
protocols for the program; 

(5) patient transfer protocols that have been reviewec 
and approved by the Office of Emergency MedicaJ 
Services. 

(b) Air ambulance programs based outside of North Caroline 
may be granted approval by the Office of Emergency Medical 
Services to operate in North Carolina under 10 NCAC 3D 
.0801(b)(4)(B) by submitting a proposal for program approval 
The proposal must doctiment that the program meets all criteria 
specified in Paragraph .1004(a) of this Rule. Rule, and has 
been issued a Certificate of Need by the Depanment. 

Authorin G.S. 143-514. 



312 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant 
to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

Rule-making Agency: DHR - Division of Medical Assistance 

Rule Citation: 10 NCAC 26H .0602 

Effective Date: July 25, 1997 

Findings Reviewed by Julian Mann, III: Approved 

Authority for the rule-making: G.S. 108A-25(b); 108A-54; 
108A-55; S.L. 1985, c.479, s.86: 42 C.F.R. 440.70 

Reason for Proposed Action: This action is based on a home 
health study conducted by the Division of Medical Assistance 
and results in the home health aide prospective rate being more 
nearly aligned to average industry cost. The proposed change 
will result in annual savings of approximately 900 thousand 
dollars to the Medicaid program. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by October 14, 1997 to 
Portia Rochelle, A PA Coordinator, Division of Medical 
Assistance. 1985 Umstead Drive, Raleigh, NC 27603. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0600 - HOME HEALTH PROSPECTIVE 
REIMBURSEMENT 

.0602 REIMBURSEMENT METHODS 

(a) A maximum rate per visit is established amiually for each 
of the following services: 

(1) Registered or Licensed Practical Nursing Visit; 

(2) Physical Therapy Visit; 

(3) Speech Therapy Visit; 

(4) Occupational Therapy Visit; 

(5) Home Health Aide Visit. 

(b) The maximum rates for the services identified in 
Paragraph (a) of this Rule are computed and applied as follows: 

(1) Payment of claims for visits is based on the lower of 
the billed customary charges or the maximum rate of 
the particular service. Governmental providers with 
nominal charges may bill at cost. For this purpose, 
a charge that is less than 50 percent of cost is 
considered a nominal charge. For such governmental 
providers, the payment amount is equal to the lower 
of the cost as billed or the applicable maximum rate. 

(2) Maximum per visit rates effective July 1, 1996, for 
Registered or Licensed Practical Nursing, Physical 



Therapy, Speech Therapy, and Occupational 
Therapy and Home Health Aide shall be equal to the 
rates in effect on July 1, 1995. 
(3) To compute the annual maximum rates effective each 
July 1 subsequent to July 1, 1996, the maximum 
rates per visit are adjusted as described in 
Subparagraphs (4), (5), and (6) of this Paragraph. 

(3) Maximum per visit rate effective July J_,. 1996 for 
Home Health Aide shall be equal to the rate in effect 
on July 1. 1995. To compute the annual maximum 
rates effective each July 1 subsequent to July J^ 
1996. the fiftieth percentile cost per visit calculated 
from the base year 1994 cost reports is adjusted as 
described in Subparagraphs (4). (5). and (6) of this 
Paragraph. 

(4) Each year maximum rates are adjusted by an aimual 
cost index factor. The cost index has a labor 
component with a relative weight of 75 percent and 
a non-labor component with a relative weight of 25 
percent. The relative weights are derived from the 
Medicare Home Health Agency Input Price Index 
published in the Federal Register dated May 30, 
1986. Labor cost changes are measured by the 
annual percentage change in the average hourly 
earnings of North Carolina service wages per 
worker. Non-labor cost changes are measured by the 
annual percentage change in the GNP Implicit Price 
Deflator. 

(5) The annual cost index equals the sum of the products 
of multiplying the forecasted labor cost percentage 
change by 75 percent and multiplying the forecasted 
non-labor cost percentage change by 25 percent. For 
services included under Subparagraph £2} of this 
Paragraph, the The July 1, 1996 effective rates are 
multiplied by the cost index factor for each 
subsequent year up to the year in which the rates 
apply For services included under Subparagraph (3) 
of this Paragraph, base year costs per visit are 
multiplied by the cost index factor for each 
subsequent year up to the year in which rates apply. 

(6) Other adjustments may be necessary for home health 
services to comply with federal or state laws or rules. 

(c) Medical supplies except those related to provision and 
use of Durable Medical Equipment are reimbursed at the lower 
of a provider's billed customary charges or a maximum amount 
determined for each supply item. Fees will be established 
based on average, reasonable charges if a Medicare allowable 
amount cannot be obtained for a particular supply item. 
Estimates of reasonable cost will be used if a Medicare 
allowable amoimt cannot be obtained for a particular supply or 
equipment item. The Medicare allowable amounts will be those 
amounts available to the Division of Medical Assistance as of 



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313 



TEMPORARY RULES 



July 1 of each year. 

(d) These changes to the Payment for Services Prospective 
Reimbursement Plan for Home Health Agencies will become 
effective when the Health Care Financing Administration, US 
Department Health and Human Services, approves amendment 
submined to HCFA by the Director of the Division of Medical 
Assistance on or about July 1, +996 1997 as ) y MA 9 6-03 
#MA97-06 wherein the Director proposes amendments of the 
State Plan to amend Payment for Services - Prospective 
Reimbursement Plan for Home Health Agencies. 

History Note: Authority G.S. 108A-25(b); 108A-54; 108A-55; 

S.L. 1985, C.479, s. 86; 42 C.F.R. 440.70: 

Eff. October 1, 1987; 

Amended Eff. October 1. 1992; May 1, 1990; 

Temporary Amendment Eff. October 4, 1996; 

Amended Eff. .April 1. 1997; 

Temporary Amendment Eff. July 25. 1997. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

Rule-making Agency: North Carolina Medical Board 

Rule Citation: 21 NCAC 32H .0402 

Effective Date: July 28, 1997 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for tiie rule-making: G.S. 143-514 

Reason for Proposed Action: Fosphenytoin (Cereby.x) is 
manufactured by Parke-Davis and. as of January 1, 1997 has 
permanently replaced Dilantin (phenytoin). Park-Davis no 
longer manufactures Dilantin, ho\ve\'er there are approximately 
12 companies which continue to offer generic forms of 
parenteral phenytoin. A temporary rule to include 
Fosphenytoin in the medication for use by EMT-Paramedics 
will allow local ALS medical directors to implement its use in 
their EMS protocols immediately. 

Comment Procedures: Persons who wish to make comment 
regarding this rule change should contact: Mr. Ed Browning, 
Assistant Chief- Education, NC Office of Emergency Medical 
Services. PO Box 29530. Raleigh, North Carolina 27626- 
0530 Tele: (919) 733-2285, FAX: (919) 733-7021. 

SUBCHAPTER 32H - EMERGENCY 

MEDICAL SERVICES ADVANCED 

LIFE SUPPORT 

SECTION .0400 - EDUCATION AND 



PERFORMANCE OF ADVANCED LIFE 
SUPPORT PERSONNEL 



.0402 



(b) 
(c) 



EMERGENCY MEDICAL TECHNICIAN- 
PARAMEDIC PERFORMANCE 

EMT-Ps educated in approved programs, certified by thi 
North Carolina Medical Board to perform medical acts, anc 
functioning in an approved ALS program may do any of thi 
following in accordance with the protocols established by thei 
sponsor hospital: 

( 1 ) While at the scene of a medical emergency where thi 
capability of continuous two-way voia 
communication is maintained with a physician 
approved MICN or MDA located in the sponso 
hospital, and upon order of such physician, MICN o 
MDA: 

(a) establish an intravenous line in a periphera 

vein and administer any of the followinj 

intravenous solutions: 

(i) Dextrose 5% in Water; 

(ii) Lactated Ringers Solution; 

(iii) Normal Saline; 

(iv) Dextrose 5% Lactated Ringers; 

(v) Dextrose 5 % '/: Normal Saline; 

(vi) Dextrose 5% 1/4 Normal Saline; 

(vii) Dextrose 10% in Water; and 

(viii) Dextrose 5% Normal Saline; 

obtain blood for laboratory analysis; 

administer in a fashion via a route approvec 

by the local program medical director any of 

the following medications: 

ADVANCED CARDIAC LIFE SUPPGRTl 

MEDICATIONS; 

(i) Atropine; 

(ii) Bretylium; 

(iii) Calcium Chloride/GIuconate; 
(iv) Dobutamine; 
(V) Epinephrine 1:1000; 
(vi) Epinephrine 1:10,000; 
(vii) Isoproterenol; 
(viii) Lidocaine; 
(ix) Sodium Chloride Injection; 
(x) Procainamide; 
(xi) Sodium Bicarbonate; and 
(xii) Dopamine; 
ANESTHETICS: 
(i) Lidocaine 1% or 2%; 
(ii) Procaine 1% or 2%; 
CARDIORESPIRATORY AGENTS: 
(i) Adenosine; 
(ii) Albuterol (by inhalation); 
(iii) Aminophylline; 
(iv) Furosemide; 
(v) Isoetharine (by inhalation); 
(vi) Metaproterenol (by inhalation); 
(vii) Nifedipine; 
(viii) Nitroglycerin Sublingual; 



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August 15, 1997 



12:4 



TEMPORARY RULES 



(ix) Nitroglycerin Paste; 
(x) Propranolol; 

(xi) Racemic Epinephrine (by inhalation); 
(xii) Terbutaline (injectable or by 

inhalation); and 
(xiii) Verapamil; 
OTHER MEDICATIONS: 
(i) Diazepam Injectable; 
(ii) Diphenhydramine Injectable; 
(iii) Dextrose 50%; 
(iv) Glucagon (Intramuscular or 

Subcutaneous); 
(v) Heparin (for use with heparin locks); 
(vi) IV Steroid Preparations; 
(vii) Mannitol; 
(viii) Naloxone; 
(ix) Phenytoin Injectable; 
(x) Promethazine; 
(xi) Thiamine (intramuscular or 

intravenous); 
(xii) Aspirin; 
(xiii) Lorazepam Injectable; 
(xiv) Amyl Nitrite (Pearls); 
(xv) Flumazenil; 
(xvi) Dextrose 25%; 
(xvii) Ketorolac; 
(xviii) Midazolam; and 
(xix) Magnesium Sulfate Injectable; and 
(xx) Fosphenytoin: 
ANALGESICS: 
(i) Meperidine; 
(ii) Morphine Sulfate; 
(iii) Nalbuphine Hydrochloride; and 
(iv) Nitrous Oxide (via respiratory route); 

(d) perform pulmonary ventilation by means of a 
blind insertion airway device or endotracheal 
tube; 

(e) perform defibrillation or cardioversion; 

(0 use gas-powered or hand-powered nebulizers; 

(g) decompress a tension pneumothorax by use of 
a catheter-flutter-valve device; 

(h) use positive end expiratory pressure 
respirators; 

(i) perform cricothyrotomy for relief of upper 
airway obstruction; 

(j) perform gastric suction by intubation; 

(k) perform urinary catheterization; 

(1) perform external cardiac pacing; 
(m) establish an intraosseous infusion line in 
patients under 60 months of age and use it to 
administer any intravenous fluid or medication 
specified in this Rule approved by the local 
program medical director for intraosseous 
infusion; 

(n) administer fluids and medications using 
previously established indwelling semi- 
permanent central venous catheters; and 



(o) place and maintain heparin or saline locks. 

(2) When confronted with serious or life threatening 
clinical situations as defined in the patient care 
protocols established by the sponsor hospital of the 
ALS program and approved by the Office of 
Emergency Medical Services, perform as necessary 
under standing orders any of the following prior to 
contacting the sponsor hospital: 

(a) cardiopulmonary resuscitation; 

(b) defibrillation, cardioversion, or external 
cardiac pacing; 

(c) pulmonary ventilation by means of a blind 
insertion airway device or endotracheal tube; 

(d) establish an intravenous line in a peripheral 
vein. If the intravenous line is not 
successfully established after two attempts, the 
EMT-P shall contact the sponsor hospital prior 
to making another attempt; 

(e) establish an intraosseous infusion line in 
patients under 60 months of age and use it to 
administer any intravenous fluid or medication 
specified in this Rule approved by the local 
medical program director for intraosseous 
infusion; 

(f) administer the following medications: 

(i) Albuterol (by inhalation); 
(ii) Bretylium; 
(iii) Epinephrine 1:1000; 
(iv) Epinephrine 1:10,000; 
(v) Furosemide; 

(vi) Metaproterenol (by inhalation); 
(vii) Nitroglycerin; 

(viii) Terbutaline (injectable or by 
inhalation); 
(ix) Atropine; 
(x) Dextrose 50%; 
(xi) Lidocaine; 
(xii) Naloxone; 
(xiii) Sodium Bicarbonate, 
(xiv) Diazepam Injectable; 
(xv) Diphenhydramine Injectable; 
(xvi) Aspirin; 
(xvii) Thiamine (intramuscular or 

intravenous); 
(xviii) Lorazepam (injectable); 
(xix) Dextrose 25 % ; 
(xx) Isoetharine (by inhalation); 
(xxi) Midazolam; and 
(xxii) Magnesium Sulfate Injectable. 

(3) When transporting from one medical facility to 
another a patient who is receiving intravenous 
therapy begun at the transferring facility, and where 
the capability of continuous two-way voice 
communication is maintained with a physician, 
approved MICN or MDA located in the sponsor 
hospital, or when meeting the requirements of Rule 
.1003 of this Subchapter and upon order of such 



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315 



TEMPORARY RULES 



physician, MICN or MDA, EMT-Ps may maintain 
intravenous lines for the following medications: 

(a) IV Antibiotics; 

(b) Whole Blood and Components; 

(c) Heparin Drip; 

(d) Magnesium Sulfate Drip; 

(e) Nitroglycerin Drip; 

(f) Potassium Chloride; 

(g) Urokinase; 

(h) Streptokinase; and 

(i) Tissue Plasminogen Activator. 

History Note: Authority G.S. 143-514; 

Eff. Octobers!, 1980; 

Amended Eff. August 1, 1996; April 1, 1993; October 1. 1991; 

October 1, 1990; March 1, 1990; 

Temporar,' Ameruiment Eff. July 28. 1997. 



316 NORTH CAROLINA REGISTER August 15, 1997 12:4 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting of 
July 17. 1997 pursuant to G.S. 1508-21. 17(a)(1) and reported to the Joint Legislative Administrative Procedure Oversight 
Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules have been approved by RRC 
in a form dijferent from that originally rwticed in the Register or when no notice was required to be published in the Register. 
The rules published in full text are identified by an * in the listing of approved rules. Statutory Reference: G. S. 150B-21 . 1 7. 

These rules unless otherwise noted, will become effective on the 31st legislative day of the 1998 Short Session of the General 
Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill 
receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 150B-21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



10 


NCAC 


50B 


.0202* 


10 


NCAC 


508 


.0404 


10 


NCAC 


SOB 


.0409 


12 


NCAC 


04E 


.0104* 


12 


NCAC 


04E 


.0401 


12 


NCAC 


04E 


.0404 - .0405* 


15A 


NCAC 


13A 


.0101* Amended Eff. 8-1-97 


19A 


NCAC 


02D 


.0415 


24 


NCAC 


OIP 


.0101 - .0102 


24 


NCAC 


OIP 


.0201 - .0202* 


24 


NCAC 


DIP 


.0203 



11:28 NCR 2120 

11:28 NCR 2121 

11:28 NCR 2121 

11:22 NCR 1710 

11:22 NCR 1710 

11:22 NCR 1710 

not required, G.S. 1503-21. 5 

11:26 NCR 1969 

11:28 NCR 2132 

11:28 NCR 2132 

11:28 NCR 2132 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER SOB - ELIGIBILITY DETERMINATION 

SECTION .0200 - APPLICATION PROCESS 

.0202 INITIAL INTERVIEW 

(a) The county department of social services shall conduct an 
interview with the client or his representative. The client may 
have any person or persons of his choice participate in the 
interview. During the interview, the Income Maintenance 
Caseworker shall explain the application process, the client's 
rights and responsibilities, the programs of public assistance 
and the eligibility conditions. 

(b) The applicant shall be advised of his right to apply in 
more than one program category for which he qualifies and the 
advantages and disadvantages of the choices shall be explained. 

(c) The client shall be informed of the following: 
(1) That information he provides shall be checked for 

accuracy. The client shall be told what information 
he shall provide, and what sources the agency shall 
contact to check the information. Collateral sources 
of information shall include knowledgeable 
individuals, business organizations, public records, 
and documentary evidence. If the client does not 
wish necessary collateral contacts to be made, he can 
withdraw his application. If he denies permission to 



contact necessary collaterals and all alternative 
sources of verification, the application shall be 
denied due to failure to cooperate in establishing 
eligibility. 

(2) The client has the right to: 

(A) Receive assistance if found eligible; 

(B) Be protected against discrimination on the 
grounds of race, creed, or national origin by 
Title VI of the Civil Rights Act of 1964. He 
may appeal such discrimination; 

(C) If eligible for Medicaid and Medicare Part B, 
have the monthly premium paid in his behalf 
under an agreement between the state and 
SSA; 

(D) Have any information given to the agency kept 
in confidence; 

(E) Appeal, if he believes the agency's action to 
deny, change, or terminate assistance is 
incorrect, or his request is not acted on with 
reasonable promptness; 

(F) Reapply at any time, if found ineligible; 

(G) Withdraw from the program at any time; 
(H) Request the agency's help in obtaining third 

party information which he is responsible to 
provide; 
(I) Be informed of all alternative sources of 
verification for the information he is 
responsible to provide. 

(3) The client shall be responsible for the following: 



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317 



APPROVED RULES 



(A) Provide the county department, state and 
federal officials, the necessary sources from 
which to locate and obtain information needed 
to determine eligibility; 

(B) Report to the county department of social 
services any change in situation that may 
affect eligibility within 10 calendar days after 
it happens. The meaning of fraud shall be 
explained. The applicant shall be informed 
that he may be suspected of fraud if he fails to 
report a change in situation and that in such 
situations, he may have to repay assistance 
received in error and that he may also be tried 
by the courts for fraud; 

(C) Inform the county department of social 
services of any persons or organization against 
whom he has a right to recovery. When he 
accepts medical assistance, the applicant 
assigns his rights to third party insurance 
benefits to the state. He shall be informed that 
it is a misdemeanor to fail to disclose the 
identity of any person or organization against 
whom he has a right to recovery; 

(D) Immediately report to the county department 
the receipt of an I. D. card which he knows to 
be erroneous. If he does not report such and 
uses the I.D. card, he may be required to 
repay any medical expenses paid in error. 

History' Note: Authority G.S. 108A-25(b); 108A-57; 42 
C.F.R. 435.908: Alexanders Flaherty. U.S.D.C. W.D.N. C, 
File No. C-C-74-183. Consent Order Filed 15 December 1989; 
Alexander v. Flaherty Consent Order filed February 14, 1992; 
Ejf. September 1, 1984; 

Amended Ejf. April 1. 1993; August 1. 1990; March 1. 1986; 
Temporary Amendment Eff. August 22, 1996; 
Amended Eff. Aug ust 1. 1998. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 4 - DIVISION OF CRIMIN.\L 
INFORMATION 

SUBCHAPTER 4E - ORGANIZATIONAL RULES 
AND FUNCTIONS 

SECTION .0100 - GENTILAL PROVISIONS 

.0104 DEFINITIONS 

The following definitions shall apply throughout Chapter 4 
of this Title: 

(1) "Administration of Criminal Justice" means the 
performance of any of the following activities: 
detection, apprehension, detention, pretrial release, 
post-trial release, prosecution, adjudication, and 
correctional supervision or rehabilitation of accused 



(2) 



(3) 



(4) 



(5) 
(6) 



criminal offenders. The administration of crimin; 
justice shall include criminal identification activitii 
and the collection, storage, and dissemination c 
criminal history record information. 
"Administrative Message" means messages that ma 
be used by DCI terminal operators to exchang 
official information of an administrative natur 
between in-state law enforcement/criminal justic 
agencies and out-of-state agencies by means o 
NLETS. 

"Authorized Requestor" means any person who i 
authorized and approved to receive state and nationa 
criminal history data by virture of being: 

(a) a member of an approved lav 
enforcement/criminal justice agency pursuan 
to Rule .0201 of this Subchapter; or 

(b) any DCI or NCIC authorized non-crimina 
justice agency pursuant to local ordinance o 
a state or federal law. 

"Automated Fingerprint Identification System 
(APIS) means a computer based system for reading 
encoding, matching, storage and retrieval o 
fingerprint minutiae and images. 
"CCH" means computerized criminal history. 
"Convicted" or "conviction" means for purposes o 
DCI operator certification, the entry of: 

(a) a plea of guilty; 

(b) a verdict or finding of guilt by a jury, judge 
magistrate, or other duly constituted 
established, and recognized adjudicating body 
tribunal, or official, either civilian or military 
or 

(cj a plea of no contest, nolo contendere, or the 
equivalent. 



History Note: Authority G.S. 114-10; 114-10.1; 

Eff. November 1, 1991; 

.Amended Eff. August L 1998: October 1, 1995; October 1, 

1994. 

SECTION .0400 - OPERATION OF DCI TERMINAL 

.0404 PERIOD OF SUSPENSION 

A conviction of a felony shall render an applicant or certified 
DCI operator permanenth' ineligible to hold such certification. 
A conviction of a misdemeanor involving fraud, 
misrepresentation, or deceit shall render an applicant ineligible 
to become certified as a DCI terminal operator when such 
conviction is within 10 years of the operator's date of request 
for DCI certification. Operators convicted of such a 
misdemeanor while holding certification shall be ineligible to 
maintain such certification for a period of 10 years following 
such conviction. An applicant or certified DCI terminal 
operator shall be permanently ineligible to hold such 
certification upon their conviction of three or more 
misdemeanors involving fraud, misrepresentation, or deceit 
regardless of the date of conviction. 



318 



NORTH CAROLINA REGISTER 



August 15, 1997 



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APPROVED RULES 



History Note, 
yf. Au gust 1 



Authority G.S. J 14-10; 114-10.1; 
1998. 



0405 MINIMUM STANDARDS FOR DCI 
TERMINAL OPERATORS 

(a) Prior to receiving certification as a DCI operator, and as 
I condition for maintaining certification as a DCI operator, 
luch applicant or operator shall be a citizen of the United 
States. 

(b) The applicant or certified operator shall be at least 18 
fears of age. 

(c) Consistent with Rule .0401 and .0404 of this Section, no 
ipplicant for certification as a DCI operator shall be eligible for 
;ertification while the applicant is subject to pending or 
autstanding criminal charges which, if adjudicated, would 
iisqualify the applicant. 

History Note: Authority G.S. 114-10; 114-10.1; 
Eff. Au g ust 1. 1998. 



TITLE 15A - DEPARTMENT OF E^^VIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13A - HAZARDOUS WASTE 
MANAGEMENT 

SECTION .0100 - HAZARDOUS WASTE 

.0101 GENERAL 

(a) The Hazardous Waste Section of the Division of Waste 
Management shall administer the hazardous waste management 
program for the State of North Carolina. 

(b) In applying the federal requirements incorporated by 
reference throughout this Subchapter, the following 
substitutions or exceptions shall apply: 

(1) "Depanment of Environment, Health, and Natural 
Resources" shall be substituted for "Environmental 
Protection Agency" except in 40 CFR 262.51 
through 262.54, 262.56, 262.57 where references to 
the Environmental Protection Agency shall remain 
without substitution; 

(2) "Secretary of the Depanment of Environment, 
Health, and Natural Resources" shall be substituted 
for "Administrator," "Regional Administrator" and 
"Director" except for 40 CFR 262.55 through 
262.57, 264.12(a), 268.5, 268.6, 268.42(b) and 
268.44 where the references to the Administrator, 
Regional Administrator, and Director shall remain 
without substitution; and 

(3) An "annual report" shall be required for all 
hazardous waste generators, treaters, storers, and 
disposers rather than a "biennial report". 

(c) In the event that there are inconsistencies or duplications 
in the requirements of those Federal rules incorporated by 



reference throughout this Subchapter and the State rules set out 
in this Subchapter, the provisions incorporated by reference 
shall prevail except where the State rules are more stringent. 

(d) 40 CFR 260.1 through 260.3 (Subpart A), "General," 
have been incorporated by reference including subsequent 
amendments and editions. 

(e) 40CFR260.il, "References", has been incorporated by 
reference including subsequent amendments and editions. 

(0 Copies of all materials in this Subchapter may be 
inspected or obtained as follows: 

(1) Persons interested in receiving rule-making notices 
concerning the North Carolina Hazardous Waste 
Management Rules must submit a written request to 
the Hazardous Waste Section, P.O. Box 29603, 
Raleigh, N.C. 2761 1-9603. A check in the amount 
of fifteen dollars ($15.00) made payable to The 
Hazardous Waste Section must be enclosed with each 
request. Upon receipt of each request, individuals 
will be placed on a mailing list to receive notices for 
one year. 

(2) Material incorporated by reference in the Federal 
Register may be obtained from the Superintendent of 
Documents, U.S. Government Printing Office, 
Washington, D.C. 20402 at a cost of four hundred 
and fifteen dollars ($415.00) per year. Federal 
Register materials are codified once a year in the 
Code of Federal Regulations and may be obtained at 
the above address for a cost of: 40 CFR 1 -5 1 thirty 
one dollars ($31.00), 40 CFR 260-299 thirty six 
dollars ($36.00) and 40 CFR 100-149 thiny four 
dollars ($34.00), total one hundred and one dollars 
($101.00). 

(3) The North Carolina Hazardous Waste Management 
Rules, including the incorporated by reference 
materials, may be obtained from the Hazardous 
Waste Section at a cost of sixteen dollars ($16.00). 

(4) AH material is available for inspection at the 
Department of Environment, Health, and Natural 
Resources, Hazardous Waste Section, 401 Oberlin 
Road, Raleigh, N.C. 

History Note: Authority G.S. 130A-294(c); 150B-21.6; 

Eff. September 1. 1979; 

Amended Eff. June I. 1989; June 1, 1988; August 1. 1987; 

May 1. 1987; 

Transferred and Recodified from 10 NCAC lOF .0001 Eff. April 

4. 1990: 

Amended Eff. October 1. 1993; April 1. 1993; October 1, 

1992; December 1, 1991; 

Recodified from 15A NCAC 13A .0001 Eff. December 20, 

1996; 

Amended Eff August 1. 1997. 



TITLE 24 - INDEPENDENT AGENCIES 
CHAPTER 1 - N.C. HOUSING FINANCE AGENCY 



42:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



319 



APPROVED RULES 



SUBCHAPTER IP - FIRE PROTECTION FUND 
SECTION .0200 - ADMINISTRATION 

.0201 APPLICATION PROCEDURES 

The North Carolina Housing Finance Agency shall publish 
a request for proposals in at least five major newspapers and 
other forms of public notice shall be used to solicit applications 
from eligible borrowers. 

History Note: Authority G.S. 122A-5: 122A-5.1: 122A-5. 13: 
Temporary Adoption Eff. October 1, 1996: 
Eff. August 1. 1998. 

.0202 SELECTION PROCEDURE 

Applications for financial assistance shall be evaluated and 
selected using the following criteria in order to improve safety 
for the greatest number of vulnerable residents: 

(1) Financial need; and 

(2) Percentage of nonambulatory and disabled residents; 
and 

(3) Estimated economic life of the facility; and 

(4) Reliability of current fire protection systems and 
services; and 

(5) Degree to which proposed costs are below the 
program maximums per square foot; and 

(6) Receipt by the facility of any negative administrative 
action taken by the North Carolina Division of 
Facility Services or the United States Health Care 
Financing Administration that would cause 
revocation of licensure or, in the event that the 
borrower fails to make timely payments. 

History Note: Authority G.S. 122A-5: 122A-5. 1: 122A-5. 13: 
Temporary Adoption Eff. October 1, 1996: 
Eff. August 1. 1998. 



320 NORTH CAROLINA REGISTER August 15, 1997 12:4 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. August 21. 1997. 
10:00 a.m.. at 1 307 Glenwood Ave. , Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule 
before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by 
Monday. August 18. 1997. gi 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review 
Commission at 919-733-2721. Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Philip O. Redwine - Chairman 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 



Appointed by House 

Bill Graham - Vice Chairman 

James Mallory, III 

Paul Powell 

Anita White 



RULES REVIEW COMMISSION MEETING DATES 



August 21, 1997 
September 18, 1997 



October 16, 1997 
November 20, 1997 



MEETING DATE: AUGUST 21, 1997 

LOG OF FILINGS 

RULES SUBMITTED: JUNE 20, 1997 THROUGH JULY 20, 1997 



AGENCY/DIVISION 



RULE NAME 



COMMERCE/CREDIT UNION DIVISION 

Loans to Credit Union Officials 
Business Loans 
Loan Limitations 

DHR/SOCIAL SERVICES COMMISSION 

Basic Eligibility Criteria 
Maximum Income Levels 
Without Regard to Income Status 
Health Support Services 
Nature and Purpose 
Mandated Resources 
Funding For Mandated Resources 

DEHNR/MARINE HSHERIES COMMISSION 

Flounder 
Snapper-Grouper 
Recreational Fishing 
Scup (Porgy) 
Marking Shellfish Leases 

DEHNR/COASTAL RESOURCES COMMISSION 

Use Standards 
Approval Procedures 



RULE 


ACTION 


4 NCAC 6C .0205 


Amend 


4 NCAC 6C .0407 


Amend 


4 NCAC 6C .0409 


Adopt 


10NCAC35E .0101 


Amend 


10NCAC35E .0105 


Amend 


10 NCAC 35E .0106 


Amend 


10 NCAC 35E .0308 


Amend 


10 NCAC42J .0001 


Amend 


10 NCAC 42J .0004 


Amend 


10 NCAC 42J .0005 


Amend 


15A NCAC 3M .0503 


Amend 


15A NCAC 3M .0506 


Amend 


15A NCAC 3M .0507 


Amend 


15A NCAC3M .0514 


Adopt 


15A NCAC 30 .0204 


Amend 


15A NCAC 7H .0208 


Amend 


15ANCAC7H .1202 


Amend 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



321 



RULES REVIEW COMMISSION 



General Conditions 

Specific Conditions 
Private Bulkheads 



15A NCAC 7H .1204 Amend 

1 5 A NCAC 7H . 1 205 Amend 

15A NCAC 7K .0203 Amend 



RULES REVIEW OBJECTIONS 
ADMINISTRATION 

State Construction 

1 NCAC 30G .0102 - Policy 
No Response from Agency 
Agency Revised Rule 

1 NCAC 30G .0104- General Procedures 

No Response from Agency 
Agency Revised Rule 

AGRICULTURE 

2 NCAC 43 F .0003 - Standards for Receptacles: Labeling: Etc. (Recodified to .0103) 

Agency Revised Rule 
2 NCAC 43H .0007 - Special Requirements (Recodified to .0107) 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOLUCES 

Environmental Management 

15A NCAC 2H .0225 - Conditions for Issuing General Permits 

Marine Fisheries 

15A NCAC 30 .0101 - License Agents 
Agency Revised Rule 

N.C. HOUSING FINANCE AGENCY 

24 NCAC IP .0103 - Types of Assistance 

HUMAN RESOURCES 

Facility Services 

10 NCAC 3R .3033 - Open Heart Surgery Senices Need Determinations (Rev. Cat. H) 



JUSTICE 

Criminal Justice Education & Training Standards Commission 

12 NCAC 9B .0102 - Background Investigation 
Agency Revised Rule 

TRANSPORTATION 

Division of Highvtays 

19A NCAC 28 .0164 - Use of Right of Way Consultants 



RRC Objection 


03/20/97 




04/17/97 


Obj. Removed 


05/15/97 


RRC Objection 


03/20/97 




04/17/97 


Obj. Removed 


05/15/97 


RRC Objection 


05/15/97 


Obj. Removed 


06/19/97 


RRC Objection 


05/15/97 


Obj. Removed 


06/19/97 



RRC Objection 


07/17/97 


RRC Objection 


04/1 7/97 


Obj. Removed 


05/15/97 


RRC Objection 


07/17/97 



RRC Objection 


01/16/97 


Obj. Cont'd 


02/20/97 


Obj. Cont'd 


03/20/97 


Obj. Cont'd 


06/19/97 


Obj. Cont'd 


07/17/97 



RRC Objection 
Obj. Removed 



RRC Objection 



04/17/97 
05/15/97 



07/17/97 



322 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



CONTESTED CASE DECISIONS 



I his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office 
of Administrative Hearings. (919) 733-2698. 



OFnCE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JULIAN MANN, III 



Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRATIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Dolores O. Smith 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Fast Fare. Inc. 
Alcoholic Beverage Comrol Comm- v. Paradise Landing. Inc. 
Daniel Gary Ledbeuer v. Alcoholic Beverage Control Commission 

CORRECTION 

David M Boone v. Correction, Div of Prison Admin Remedy Procedure 

CRIME CONTROL AND PUBLIC SAFETY 

Delia Sherrod v Crime Victims Compensation Commission 
Rodney P Hodge v. Crime Victims Compensation Commission 
Billy Steen v. Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Linda Collie v. Lenoir County Health Department 

Leroy Anderson v County of Moore Department of Health 

John Ronald Taylor v Environment. Health, & Natural Resources 

Rick Parker v Pitt County Health Dept./Mr. Ernie Nichols 

Maternal and Child Health 

Evan's Mini Mart v. EHNR. Maternal & Child Health. Nutrition Svcs Sec. 

Solid Waste Management 

Loie J. Priddy v Division of Solid Waste Management, EHNR 

Water Quality 

Castle Hayne Steering Committee v. EHNR. Division of Water Quality 

and 
New Hanover County Water and Sewer District 



96 ABC 0483 


Morrison 


06/18/97 




97 ABC 003 1 


Gray 


06/13/97 




97 ABC 0443 


Gray 


07/08/97 




97 DOC 0534 


Morrison 


06/16/97 




96 CPS 0300 


Chess 


07/18/97 




97 CPS 0449 


Reilly 


07/01/97 




97 CPS 0472 


Morrison 


07/23/97 




96 EHR 0264 


Becton 


07/16/97 




96EHR 1969 


Morrison 


07/15/97 


12:03 NCR 223 


97 EHR 0275 


Reilly 


06/09/97 




97 EHR 0470 


Phipps 


07/01/97 




97 EHR 0599 


Phipps 


07/14/97 




96 EHR 1838 


Morrison 


06/20/97 


12:02 NCR 103 


96 EHR 1731 


Mann 


06/30/97 





^2:4 



NORTH CAROLINA REGISTER 



August IS, 1997 



323 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NXAIBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



HUMAN RESOURCES 

Cindy G. Geho v. Office of Adminisiralive Hearings. R. Marcus Lodge 
Ocelee Gibson v Department of Human Resources 

Division of Facility Services 

Ava McKinney v DHR, Division of Facility Services 

Mercy Egbuleonu v DHR, Facility Svcs. Health Care Personnel Reg. Sec- 

Kizzie Cooper v DHR, Facility Svcs, Health Care Personnel Registry Sec 

Maggie J Barnhill v. DHR, Facility Svcs. Health Care Personnel Reg- Sec 

Emma Faison v DHR, Division of Facility Services 

Patricia Addison v DHR. Facility Svcs, Health Care Personnel Reg. Sec 

Claudia K. Thomerson v DHR. Facility Svcs. Health Care Persnl Reg. Sec 

Michelle R. Griffin v DHR. Facility Svcs. Health Care Personnel Reg. Sec 

Certificate of Need Section 
Carolina Imaging, Inc/Fayettevllle v. DHR. Facility Svcs. Cert/Need Sec. 

and 
Cumberland Cly Hospital System. Inc.. d/b/a Cape Fear Valley Med. Ctr. 

Group Licensure Section 
Jeffreys Family Care #2 v DHR. Facility Svcs. Group Licensure Section 

Division of Social Services 

Child Support Enforcement Section 
Steven Van Linker v. Department of Human Resources 
David Lee Chamblee Jr. v Department of Human Resources 
Michael T Swann v Department of Human Resources 
Ted Wayne Lamb v Department of Human Resources 
David N- Jarrett v. Department of Human Resources 
Tollie Woods v Department of Human Resources 
Michael A. Isom v Department of Human Resources 
Justin M. Woazeah. Sr v Department of Human Resources 
Calvin F. Mizelle v. Department of Human Resources 
Ander L. Garfield v. Department of Human Resources 
David Fraizer v Department of Human Resources 
David Fraizer v Department of Human Resources 
David Hobson v. Department of Human Resources 
David Scott Jordan v. Department of Human Resources 
Lee R Jones v. Department of Human Resources 
Cecil Hall v Department of Human Resources 
Neil G McGilberry v. Department of Human Resources 
Dennis Larson v. Department of Human Resources 
Eric L. Harrington v. Department of Human Resources 
Scott M. Rodriguez v. Department of Human Resources 
James Withers v. Department of Human Resources 
Ronald L. Hadley v Department of Human Resources 
Garland M. Jessup v. Guilford County Child Support Enforcement 
Roger G. Foster v Department of Human Resources 
Charlie T Smith v Department of Human Resources 
Joseph Michael Eubanks v Department of Human Resources 
Charles F. King v Department of Human Resources 
Steven Van Linker v Department of Human Resources 
Barry Tukes Sr v, C S.E 

Willie L. Berry v. Department of Human Resources 
Tony Orlando Steele v. Department of Human Resources 
Carl Locklear v Department of Human Resources 
Tollie Woods v. Department of Human Resources 
Charles L. Raynor v Department of Human Resources 
Robert Walker v Intercept Tax Refunds 
Justin M. Woazeah, Sr. v Department of Human Resources 
William A. Underbill v Department of Human Resources 
Almiron J Deis v Department of Human Resources 
Ander L. Garfield v Department of Human Resources 
David Hobson v Department of Human Resources 
Gregory D Simpson v Department of Human Resources 
Donald Ray Archie v. Department of Human Resources 
John W. Liverman v. Department of Human Resources 



97 DHR 0286 


Chess 


07/23/97 




97 DHR 0658 


Reilly 


07/22/97 




96 DHR 2061 


Chess 


07/08/97 




97 DHR 0172 


Becton 


07/16/97 




97 DHR 0459 


Phipps 


06/09/97 




97 DHR 0465 


Gray 


07/30/97 




97 DHR 0471 


Gray 


07/15/97 




97 DHR 0521 


Mann 


07/25/97 




97 DHR 0551 


Chess 


07/15/97 




97 DHR 0559 


Gray 


07/30/97 




96 DHR 1570 


Phipps 


06/24/97 


12:02 NCR 95 



97 DHR 0259 



Mann 



06/17/97 



96 CRA 1250*= 


Becton 


07/11/97 


96CRA1281 


Morrison 


06/16/97 


96 CRA 1326 


Chess 


06/04/97 


96 CRA 1359 


Gray 


07/10/97 


96 CRA 1438 


Morrison 


07/10/97 


96 CRA 1348*' 


Morrison 


08/04/97 


96 CRA 1450 


Becton 


07/11/97 


96 CRA 1452*' 


Chess 


07/22/97 


96 CRA 1476 


Chess 


07/07/97 


96 CRA 1479*' 


Morrison 


07/15/97 


96 CRA 1519*'° 


Chess 


07/18/97 


96 CRA 1520*'° 


Chess 


07/18/97 


96 CRA 1522*" 


Phipps 


07/24/97 


96 CRA 1673 


Reilly 


07/18/97 


96 CRA 1720*' 


Phipps 


07/10/97 


96 CRA 1749*> 


Mann 


07/10/97 


96 CRA 1767*' 


Becton 


07/15/97 


96 CRA 1793 


Chess 


06/17/97 


96 CRA 1794 


Mann 


07/19/97 


96CRA1818-' 


Gray 


06/25/97 


96 CRA 1820 


Reilly 


07/24/97 


96 CRA 1892 


Reilly 


07/18/97 


96 CRA 1898 


Becton 


07/11/97 


97 CRA 0043 


Phipps 


06/19/97 


97 CRA 0280 


Reilly 


06/16/97 


97 CRA 0477 


Reilly 


07/18/97 


97 CRA 0720 


Reilly 


07/30/97 


96 CSE 1249*= 


Becton 


07/11/97 


96CSE 1277 


Mann 


07/01/97 


96 CSE 1319 


Gray 


06/25/97 


96 CSE 1337 


Mann 


06/30/97 


96 CSE 1338 


Mann 


07/07/97 


96 CSE 1340*' 


Morrison 


08/04/97 


96 CSE 1382 


Becton 


07/11/97 


96 CSE 1384 


Morrison 


07/24/97 


96 CSE 1453*' 


Chess 


07/22/97 


96 CSE 1455 


Mann 


07/18/97 


96 CSE 1456 


Gray 


06/25/97 


96 CSE 1480*' 


Morrison 


07/15/97 


96 CSE 1521*" 


Phipps 


07/24/97 


96 CSE 1527 


Reilly 


06/25/97 


96 CSE 1558 


Becton 


07/11/97 


96 CSE 1568 


Becton 


07/11/97 



Consolidated Cases. 



324 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



CONTESTED CASE DECISIONS 



AGENCY 



Vincent L Martin v Department of Human Resources 

David Fraizer v. Department of Human Resources 

jolet Holloway, Jr v Department of Human Resources 
leffrey Pierce v Department of Human Resources 
(Viliiam C. Rivera v. Department of Human Resources 

,enora McCraciien v. Department of Human Resources 

,ee R. Jones v. Department of Human Resources 
Cecil Hall v. Department of Human Resources 
Neil G. McGilberry v Department of Human Resources 
Devin J. Bello v. Department of Human Resources 
Scott M. Rodriguez v. Department of Human Resources 

lean Heitz v. Department of Human Resources 
Nathan S. Lockhart Sr. v. Department of Human Resources 
Scott James Petrill v. Department of Human Resources 
Daniel E. Carpenter v. Department of Human Resources 
Daryl E. Shankle v. Child Support Enforcement Agency 
leffrey William Strama v. Department of Human Resources 
Tommy L- Hines Sr. v. Forsyth County Child Support Enforcement 
Irvan Jemal Fontenot v. Department of Human Resources 
Pearlie Blakney v. Department of Human Resources 
Leroy Grooms v Department of Human Resources 
Sarah Chambers v. Department of Human Resources 
Leroy Grooms v. Department of Human Resources 
William A. Rogers v. Department of Human Resources 
James G Davis v Department of Human Resources 
Randy Gavurmk v. Department of Human Resources 
Curtis Leon Mock v. Department of Human Resources 
Daniel E. Carpenter v. Department of Human Resources 
Guy R Auger v. Brunswick County Child Support Enforcement 
David F. Norman v. Department of Human Resources 
David Hobson v Department of Human Resources 
Linda Wade-Hargrove v Department of Human Resources 
Regina C. Sullivan v Department of Human Resources 

INSURANCE 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


96 CSE 1574 


Gray 


08/04/97 




96CSE 1610*'° 


Chess 


07/18/97 




96 CSE 1611 


Becton 


07/11/97 




96 CSE 1613 


Mann 


06/30/97 




96 CSE 1622 


Mann 


06/18/97 




96 CSE 1644 


Mann 


06/30/97 




96 CSE 1719*" 


Phipps 


07/10/97 




96 CSE I750*> 


Mann 


07/10/97 




96 CSE 1766*' 


Becton 


07/15/97 




96 CSE 1774 


Phipps 


07/16/97 




96 CSE 1817*' 


Gray 


06/25/97 




96 CSE 1909 


Chess 


07/22/97 




96 CSE 1910 


Phipps 


07/16/97 




96 CSE 1914 


Morrison 


07/30/97 




96 CSE 1917*'= 


Phipps 


07/25/97 




96 CSE 1977 


Becton 


07/11/97 




96 CSE 2043 


Becton 


07/11/97 




97 CSE 0015 


Reilly 


07/18/97 




97 CSE 0223 


Becton 


07/11/97 




97 CSE 0254 


Phipps 


07/24/97 




97 CSE 0258*' 


Becton 


07/18/97 




97 CSE 0278 


Morrison 


06/16/97 




97 CSE 0297*' 


Becton 


07/18/97 




97 CSE 0410 


Gray 


06/25/97 




97 CSE 0448 


Gray 


07/28/97 




97 CSE 0454 


Morrison 


08/04/97 




97 CSE 0490 


Mann 


06/17/97 




97 CSE 0501*' = 


Phipps 


07/25/97 




97 CSE 0600 


Morrison 


07/18/97 




97 CSE 0672 


Gray 


07/28/97 




97 CSE 1747*" 


Phipps 


07/24/97 




97 DCS 0365 


Becton 


07/11/97 




97 DCS 0482 


Becton 


07/18/97 





Joseph J. Peacock v. Department of Insurance 
JUSTICE 



96 INS 0433 



Becton 



07/25/97 



12:04 NCR 327 



Imran Ramnarine v. Department of Justice, Company Police Program 

Education and Training Standards Division 

Charles Thomas Ohnmacht, Jr. v. Criml. Justice Ed/Training Stds. Comm 
James Haywood Mathews, Jr. v. Criml. Justice Ed./Traming Stds Comm. 
Christopher Lee v. Criminal Justice Ed. & Training Standards Comm. 
Frank Arlander Hearne v Criml. Justice Ed & Training Stds. Comm 
Audrey McDonald Rodgers v. Sheriffs' Ed. & Trainmg Stds. Comm. 

Private Protective Services Board 

Private Protective Services Board v Phillip L. Hanson 

Ronald Anthony Bobeck v. Private Protective Services Board 



97 DOJ 2071 


Becton 


06/11/97 


96 DOJ 0353 


Phipps 


06/13/97 


96 DOJ 1957 


Reilly 


07/31/97 


97 DOJ 0076 


Morrison 


06/19/97 


97 DOJ 0137 


Reilly 


06/10/97 


97 DOJ 0308 


Reilly 


07/31/97 


96 DOJ 0795 


Smith 


06/05/97 


97 DOJ 0476 


Morrison 


06/20/97 



PUBLIC INSTRUCTION 



Karen L. Holgersen v. Department of Public Instruction 

Meridith Kirkpatrick, by her parent, Susan Kirkpatrick and Meridith 

Kirkpatrick, Individually v. Lenoir County Board of Education 
Brenda Joyce Brooks Lovely v. State Board of Education 



96 EDC 0808 


Smith 


05/27/97 


96 EDC 0979 


Overby 


06/02/97 


97 EDC 0089 


Morrison 


08/01/97 



STATE PERSONNEL 



Brunswick Community College 

Dr. Donald W Skinner v Brunswick Community College 

Correction 

William Hershel Bradley v. Franklin Freeman, Supi. Mark Hughes, 

Grant Spicer. Asst. Supt. Wade Hatley. et al. Department of Correction 
Dennis Harrell v Department of Correction 
Morton Floyd v New Hanover Department of Correction 

Employment Security Commission 

Broxie J Nelson v Employment Security Commission 
Mary H Ranson v Employment Security Commission 



97OSP0310 


Phipps 


06/12/97 


96 0SP 1604 


Phipps 


06/19/97 


96 OSP 2039 


Chess 


06/18/97 


97OSP0152 


Gray 


06/13/97 


96 OSP 0378 


Becton 


07/10/97 


97 OSP 0387 


Mann 


07/24/97 



d2:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



325 



CONTESTED CASE DECISIONS 



AGENCY 

Human Resources 

Glen Suuon v. Cumberland Couniy Department of Social Services 
Clifton Dean Hill v Department of Human Resources 

Public Instruction 

Frances Phillips Melott v. Department of Public Instruction 

University of North Carolina 

Diane Riggsbee-Raynor v UNC at Chapel Hill 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


96 0SP 1296 


Gray 


07/17/97 




97 OSP 0007 


Phipps 


06/20/97 


12:02 NCR 107 


95 OSP 0907 


Trawick 


06/09/97 




96 OSP 0326 


Chess 


06/04/97 


12:01 NCR 39 



TRANSPORTATION 

Audrey W, Harris v. Transportation. Manson/Wheat Contr.. & Wake Elec 97 DOT 0566 Gray 



07/28/96 



326 



NORTH CAROLINA REGISTER 



August 15, 1997 



12:4 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 


IN THE OFFICE OF 




ADMINISTRATIVE HEARINGS 


COUNTY OF WAKE 


96 INS 0433 


JOSEPH J. PEACOCK, 




Petitioner, 




V. 


PROPOSAL FOR DECISION 




N.C. Gen. Stat. §150B-40(e) 


N.C. DEPARTMENT OF INSURANCE, ] 




1 Respondent. ] 





This matter was commenced by a request filed with the Director of the Office of Administrative Hearings for the 
assignment of an adininistrative law judge pursuant to the provisions of N.C. Gen. Stat. §150B-40(e). The administrative hearing 
was held before Brenda B. Becton, Administrative Law Judge, in Raleigh, North Carolina on June 24, 1997. 

APPEARANCES 

For Petitioner: THOMAS AND FARRIS, Attorneys at Law, Wilson, North Carolina; Allen G. Thomas and Eliot F. Smith 
appearing. 

For Respondent; Jo Ann Weaver Hull, Assistant Attorney General, N.C. Department of Justice, Raleigh, North Carolina. 

ISSUE 

Whether the Petitioner meets all of the requirements of N.C. Gen. Stat. §§58-33-30, 58-33-45, and other pertinent 
sections, for licensing as an insurance agent, so that he should have his license reinstated. 

STATUTES AND RULES INVOLVED 

N.C. GEN. STAT. §58-33-30 
N.C. GEN. STAT. §58-33-45 

EXHIBITS 

The following exhibits offered by the Petitioner were received in evidence: 
PI. Criminal Record Check in Sampson County. 
P2. Criminal Record Check in Johnston County. 

March 25, 1992 - Termination of Agent Appointment. 



P3. 
P4. 



November 27, 1992 - JUDGMENT (Sampson County) - Petitioner guilty to 2 cts misd. larceny - 2 yrs/susp 3; due 
$185.00; 50 hrs c/s; surrender ins. License 12 mos. 



P5. December 3, 1992 - ORDER (Sampson County) - giving Petitioner 1 1 days (until Dec. 18) to surrender insurance license 

P6. April 20, 1993 - JUDGMENT (Johnston County) - Petitioner guilty of 1 ct. misd. larceny - 2 yrs/susp 5; due $1,926.80; 
24 hrs c/s; not sell ins. during suspension of sentence 

P7. May 14, 1993 - Letter from Shirley Wms. (Dept. of Ins.) to Petitioner - notice of revocation of insurance license 



12:4 



NORTH CAROLINA REGISTER 



August 15, 1997 



327 



CONTESTED CASE DECISIONS 



P8. January 11, 1995 - Letter from Joe Maciejewski from Dept. of Corrections stating that Petitioner's probation was 
terminated after one year and all obligations with State completed 

P9. February 8, 1995 - ORDER (Johnston County) - modifying judgment to permit Petitioner to sell insurance as long as so 
licensed 

PIO. April 3, 1995 - Letter from Petitioner to Agent Services - requesting license back 

PI 1 . May 22, 1995 - Letter from Shirley Williams (Dept. of Ins.) to Petitioner - "due to nature of conviction" declines request 
for license; however, can complete education requirements and request hearing 

P12. August 3, 1995 - Letter from Petitioner to Williams - complete education requirements and enclosed certificate; requested 
license 

P13. August 15, 1995 - Letter from Williams to Petitioner - enclosed copy of 5/22/95 letter explaining recourse 

P14. November 7, 1995 - Letter from Petitioner to Williams - requesting formal hearing 

P15. January 1 1, 1996 - Letter from Petitioner to Williams and copied to James E. Long - requesting hearing 

P16. January 25, 1996 - Letter from Williams to Petitioner - no documentation that N.C. state exam passed; once taken then 
formal denial 

P17. March 15, 1996 - Letter from Petitioner to Williams and copied to James E. Long - requesting hearing 

P18. April 10, 1996 - Letter from Jo Ann Weaver Hull (A.G.'s office) to Julian Mann (Director and Chief ALJ) - requesting 
designation of an ALJ to preside over Petitioner's case 

P19. September 25, 1990 - Agent's Contract between Petitioner and Standard Life and Accident Insurance Company - re: 
commissions and fees 

P20. Petitioner's 1991 FORM 1099 - $81,133.06 

P21. Ten Certificates of Completion for hisurance Courses -Dated 3/22/91; 10/18/91; 10/27/92; 10/28/92; 8/25/93; 12/17/94; 
12/19/94(2); 12/21/95; 12/22/95 

P22. January 28, 1992 - Letter from Alice Cantrell (Marketing Service Manager at Standard Life) to Petitioner - qualification 
for President's Club for seventh consecutive time 

P23. Letter from Dewey B. Sheffield regarding Petitioner's character 

P24. Letter from D.L. Blackmon regarding Petitioner's character 

P25. Letter from Donna S. Peacock regarding Petitioner's character 

P26. Copies of Certified Mail Certificates 

P27. Witness List 

P28. Certificate of Honorable Discharge from the United States Navy 

P29. Certified True Copy of original criminal record check (Wake County) 

The following exhibits offered by the Respondent were received in evidence: 

Rl. Letter from Rick Johnson to Clerk of Superior Court of Sampson County Re: Surrender of Mr. Peacock's Insurance 
License. 



( 



328 NORTH CAROLINA REGISTER August 15, 1997 12:4 





CONTESTED CASE DECISIONS 


R2. 


Judgment from Sampson County for conviction of two counts of larceny. 


R3. 


Judgment from Johnston County for conviction of one count of larceny. 


R4. 


Agent licensing history. 


R5. 


May 14, 1996 letter from Shirley Williams to Mr. Peacock revoking insurance licenses. 



R6. April 3, 1995 memo from Peacock to Agent Services requesting a second chance. 

R7. May 22, 1995 letter from Shirley Williams to Mr. Peacock denying reissue of insurance license. 

R8. August 3, 1995 letter from Mr. Peacock to Ms. Williams with Certificate of Education and requesting reissue of license. 

R9. August 15, 1995 letter from Shirley Williams to Mr. Peacock. 

RIO. November 7, 1995 letter from Mr. Peacock to Ms. Williams requesting a formal hearing. 

Rll. January 1 1, 1996 letter from Mr. Peacock to Ms. Williams requesting a hearing. 

R12. January 25, 1996 letter from Ms. Williams to Mr. Peacock explaining lack of documentation on state exam. 

R13. March 15, 1996 letter from Mr. Peacock to Ms. Williams requesting a hearing. 

R14. April 21, 1997 letter to Joseph J. Peacock from Shirley Williams. 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent and admissible 
evidence, the undersigned makes the following: 

FINDINGS OF FACT 

Stipulated Facts 

"Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties 
received notice of hearing, and Petitioner received the letters denying re-issue of his insurance license." 

2. "The North Carolina Department of Insurance has the authority granted under Chapter 58 of the North Carolina General 
Statutes to license insurance agents and to deny, revoke or suspend such licenses." 

3. "Petitioner was previously licensed to sell insurance by the North Carolina Department of Insurance." 

4. "Petitioner was convicted in Sampson County of two counts of misdemeanor larceny on November 3, 1992, and was 
ordered by the Court to surrender his insurance license for twelve months." 

5. "Petitioner was convicted in Johnson [sic] County of larceny on April 20, 1993, and was ordered by the Court not to sell 
insurance or obtain a license." 

6. "On May 14, 1993, the Petitioner's licenses to sell insurance were revoked by the Department of Insurance." 

7. "On February 8, 1995, the Petitioner obtained an order in Johnson [sic] County modifying that portion of the suspended 
sentence prohibiting the defendant from selling insurance or obtaining a license. It was ordered that the Petitioner may 
sell insurance so long as he is licensed by the State of North Carolina and may obtain a license to sell insurance if 
otherwise eligible." 

"The Petitioner applied for licensing as a Life and Health agent." 



12:4 NORTH CAROLINA REGISTER August 15, 1997 329 



CONTESTED CASE DECISIONS 



9. "The Petitioner has now successfully completed all required education requirements and has successfully completed the 
licensing examination." 

Adjudicated Facts 

10. The Petitioner was bom on July 22, 1945. He served in the United States Navy. He is a Vietnam veteran and received 
an honorable discharge. 

1 1 . The Petitioner became a licensed insurance agent in August 1969. 

12. In October 1969, the Petitioner began working as an insurance agent with Combined Insurance Company of America. 
After five months on the job, the Petitioner was promoted to a manager position. A year and a half later, the Petitioner 
became Combined Insurance Company's first district manager in North Carolina. 

13. In 1979, the Petitioner resigned from Combined Insurance Company to become the Assistant Agency Director for Investors 
Consolidated Insurance Company's Accident and Health Division. 

14. During 1981 and 1982, the Petitioner was in business for himself as an independent agent. 

15. In 1984, the Petitioner contracted with Standard Life and Accident Insurance Company as a Managing General Agent. 
He was in charge of thirty to fony agents and general agents. The Petitioner and the agents he supervised generated 
between seven and eight hundred thousand dollars a year in premiums for Standard Life. The Petitioner's first year of 
commissions and premiums generated an income of approximately si.x to eight thousand dollars a month. As the Managing 
General Agent, the Petitioner made Standard Life's President Club seven years in a row. He was always among the 
company's top ten Managing General Agents. 

16. Sometime during 1991, the Petitioner issued two field policies for a husband and wife in Sampson County. The premiums 
for the two policies were placed in the Petitioner's business account. The Petitioner misplaced the field policies and the 
premiums were never forwarded to Standard Life. When the clients contacted the Petitioner about why they had not 
received a refund on their premiums, the Petitioner tried to straighten the matter out. However, the clients' daughter had 
already made a complaint to Standard Life which referred the matter to the Respondent. 

17. The Respondent's investigation of the Petitioner's failure to remit the insurance premiums to Standard Life for the two 
field policies resulted in the Petitioner being charged with two counts of felonious embezzlement. Following a plea 
bargain, the Petitioner was convicted of two counts of misdemeanor larceny on November 3, 1992, in Sampson County. 

18. As part of the Petitioner's plea bargain, the Petitioner was required to surrender his license to sell insurance for a period 
of 12 months to the Respondent on December 18, 1992. 

19. The Petitioner was charged with another count of embezzlement in Johnston County in June 1992. This incident arose 
out of the Petitioner's supervision of another insurance agent, Jim Seay. Mr. Seay misplaced the applications for insurance 
and sent the premiums to a different insurance company than the one the application was originally for. The Petitioner 
did not keep the premiums himself and insurance policies were issued to client, although not by the insurance company 
named on the lost applications. 

20. The Petitioner pled guilts' to misdemeanor larceny and received a two year suspended sentence in April 1993. As part of 
his sentence, the Petitioner was ordered not to sell insurance or to obtain a license to sell insurance. 

21. The Petitioner does not have a conviction for misdemeanor assault by pointing a gun in Wake County on June 24, 1987. 

22. At the time the Petitioner entered his guilty pleas, he did not know that his pleas would result in termination of his right 
to collect commissions on renewals of all policies he had previously sold. 

23. The Petitioner did not convert any premiums to his personal use. 

24. The two instances of mishandling insurance premiums are the only two incidents that have occurred in the Petitioner's 
twenty-two plus years as a licensed insurance agent. 



330 NORTH CAROLINA REGISTER August 15, 1997 12:4 



CONTESTED CASE DECISIONS 



Dewey B. Sheffield has been a licensed insurance agent since 1965. He has known the Petitioner for approximately thirty- 
five years. Mr. Sheffield testified that the Petitioner has a fine reputation for integrity, trustworthiness, and honesty in 
both his community and in the insurance profession. Mr. Sheffield also testified that he has hired, trained, and managed 
hundreds of insurance salespeople and he would not hesitate to hire the Petitioner. 

In addition to having received a ribbon for his service in the military during the Vietnam war, the Petitioner is active in 
the American Legion; he is a former member of the Veterans of Foreign Wars; and he coaches little league in his 
community. 

The statutes governing the licensing requirements for insurance agents provide that "[a]n applicant for any license . . . must 
be deemed by the Commissioner to be competent, trustworthy and financially responsible, and must have not willfully 
violated the insurance laws of this or any other state." 

Pursuant to N.C. Gen. Stat. §58-33-30(g), an application "may ... be denied for any reason for which a license may be 
suspended or revoked or not renewed under G.S. §58-33-45(a)." 

North Carolina Gen. Stat. §58-33-45(a) provides that: 

The Commissioner may suspend, revoke, or refuse to renew any license issued under this Article if ... he finds as to the 
licensee any one or more of the following conditions: 

(3) Violation of, or noncompliance with, any insurance laws, or any lawful rule, or order of the Commissioner or 

a Commissioner of another state; 

(5) Improperly withholding, misappropriating, or converting to his own use any moneys belonging to policyholders, 

insurers, beneficiaries or others received in the course of his insurance business; 

(8) Conviction of a misdemeanor involving moral turpitude, or conviction of a felony; 

(10) In the conduct of his affairs under the license, the licensee has used fraudulent, coercive or dishonest practices, 
or has shown himself to be incompetent, untrustworthy, or financially irresponsible; 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. The parties are properly before the Office of Administrative Hearings. 

The Respondent has the authority under N. C. Gen. Stat. §58-33-45(a) to suspend, revoke, or refuse to renew the license 
of any insurance agent. 

3. Under the provisions of the stauites governing insurance, the Petitioner's conviction of misdemeanor larceny him subjects 

him to possible suspension, revocation, or nonrenewal of his insurance agent's license. 

Although the Respondent has the authority to deny the Petitioner's renewal of his insurance agent's license, the 
Commissioner is not required to deny the Petitioner's application. The statute says that the Commissioner "may suspend, 
revoke, or refuse to renew any license. . . ." (Emphasis added). Consequently, the Respondent has some discretion, 
depending upon the individual circumstances to determine if nonrenewal is appropriate. 

5. The evidence indicates that the two incidents that occurred in 1991 are the only blemishes upon the Petitioner's twenty-two 

plus years as an insurance agent. During those twenty-two plus years, the Petitioner compiled a record of generally 
outstanding performance. In addition, the Petitioner has established a reputation for honesty and trustworthiness in his 
community. 



NORTH CAROLINA REGISTER August 15, 1997 331 



CONTESTED CASE DECISIONS 



6. The evidence does not indicate that the Petitioner willfully violated any laws. Instead, the evidence indicates that the 
Petitioner needed to put in place a system of checks and balances so that information or policies did not get misplaced 
without someone being aware that there was a problem. However, considering the volume of insurance business the 
Petitioner was conductmg, it cannot be said that his manner of conducting business indicates that he is incompetent 
untrustworthy, or financially irresponsible. 

7. The fact that the Petitioner has been convicted of a misdemeanor involving moral turpitude is mitigated by his established 
reputation in the community and in his profession. It is further mitigated by the facts that the Petitioner did not gain 
personally from the mistakes that he made, and those two mistakes are the only occurrences in a twenty-two plus years 
career. 

8. There is no evidence that the Petitioner used fraudulent, coercive or dishonest practices in the conduct of his insurance 
business. 

PROPOSAL FOR DECISION 

The Commissioner of the N.C. Department of Insurance will make the Final Decision in this contested case. Based upon 
the foregoing findings of fact and conclusions of law, it is hereby proposed that the Commissioner enter a final decision issuing 
the Petitioner a license as a Life and Health Agent. 

NOTICE 

Before the Conmiissioner of the N.C. Department of Insurance makes the FINAL DECISION, the Commissioner is 
required by North Carolina General Statutes §150B-40(e) to give each party an opportunity to file exceptions to this PROPOSAL 
FOR DECISION, and to present written arguments to those in the agency who will make the final decision. 

A copy of the fmal agency decision or order shall be served upon each party personally or by certified mail addressed to 
the party at the latest address given by the party to the agency and a copy shall be furnished to the attorney of record. N.C. Gen. 
Stat. §150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings. 

This the 25'" day of July, 1997. 



Brenda B. Becton 
Administrative Law Judge 



332 NORTH CAROLINA REGISTER August 15, 1997 12:4 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other t^vo, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
nTLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncnire 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic An Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Exammers 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 2 1 contains the chapters of the various occupational licensing boards. 



NORTH CAROLINA REGISTER 



August 15, 1997 



333 



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BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1997 



DESCRIPTION 



CODE 



ANNUAL 
SUBSCRIPTION PRICE 



Tirie 1 - Dept. of AdministraHon - Complete Tille 201 00 001 

Division of Purchase & Contract 201 10 051 

Federal Block Grant Funds 201 10 331 

Title 2 - Dept. of Agriculture - Complete Title 202 00 001 

Food & Drug Protection Division 202 15 091 

Structural Pest Control Committee 202 15 341 

Agricultural Markets 202 15 431 

Plant Industry 202 15 481 

Animal Industry 202 15 521 

Title 3 - Dept. of State Auditor • Complete Title 203 00 001 

Title 4 - Dept. of Commerce - Complete Title 204 00 001 

Alcoholic Beverage Control Commission 204 15 021 

Banking Commission 204 15 031 

Credit Union Division 204 15 061 

Savings & Loan Division 204 15 091 

Industrial Commission/Workers Compensation 204 15 101 

Savings Institutions Division 204 15 161 

Title 5 - Dept. of Corrections - Complete Title 205 00 001 

Division of Prisons 205 15 021 

Title 6 • Council of State - Complete Title 206 00 001 

Title 7 - Dept. of Cultural Resources - Complete Title 207 00 001 

Title 8 - State Board of Elections - Complete Title 208 00 001 

Title 9 - Offices of tlie Governor & U. Governor ■ Complete Title 209 00 00 1 

Title 1 - Dept. of fHuman Resources - Complete Title 2 1 00 00 1 

Licensing of Health Facilities 210 20 101 

Detention Facilities 210 20 201 

Mental Health & Rehabilitation Services 210 20 301 

Social Services 210 20 401 

Children Services/Day Care 210 20 41 1 

Services for the Aging 210 20 421 

Services for the Blind 210 20 431 

Services for the Deaf & Hard of Hearing 2 1 20 44 1 

Employment Opportunities 210 20 451 

Title 1 1 - Dept. of Insurance - Complete Title 21 1 00 001 

Insurance 211 10 Oil 

Consumer Services 211 10 041 

Fire & Rescue Services 21110 051 

Agent Services 21110 061 

Engineering & Building Codes 211 10 081 

Title 1 2 - Dept. of Jusrice - Complete Title 2 1 2 00 00 1 

Private Protective Services 212 10 071 

Police & Sheriff's Education & Training Standards 212 10 091 

NC Alarm Systems Licensing Board 212 10 111 

Title 1 3 - Dept. of Labor - Complete Title 2 1 3 00 00 1 

Mine & Quarry Safety 213 15 061 

General Safety/OSHA 213 20 001 

Wage & Hour Rules 213 15 121 

Boiler & Pressure Vessel Safety 213 15 131 

Apprenticeship & Training 213 15 141 

Elevator & Amusement Device Safety 213 15 151 

Title 14A - Dept. of Crime Control & Public Safety - Complete Title 214 00 001 

Alcohol Law Enforcement 214 00 081 

Victims Compensation Fund 214 00 111 

Title 1 5A - Dept. of Environ., HeaWi, & Nat. Resources - Complete Title 21 5 00 001 

Environmental Management 215 15 001 

AirQuahty 215 15 101 

Water Quality 215 15 201 

Land & Waste Management 215 15 301 

Solid Waste Management 215 15 311 



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$90.00 

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$110.00 

$25.00 
$70.00 
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$45.00 

$25.00 
$25.00 

$395.00 

$165,00 

$90.00 

$85.00 

$85.00 

$50.00 



DESCRIPTTON 



CODE 



ANNUAL 
SUBSCRIPTION PRICE 



Underground Storage Tanks 

Coastal Management, Fishing & Boating 

Environmental Health 

Radiation/Nuclear Waste 

Sanitation 

Public Health 

Intoxilizer & Breathalizer 

Title 1 6 - Dept. of Pubik Instruction - Complete Title 

Elementary & Secondary Education 

Title 1 7 - Department of Revenue - Complete Title 

Taxes on Individuals 
Taxes on Business 
Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 1 8 - Secretary of State - CompleteTitle 

Securities Division 

Title 1 9A - Dept. of Transportation - Complete Title 

Division of Highways 
Division of Motor \'ehicles 

Title 20 - Dept. of the State Treasurer ■ Complete Title 

Title 2 1 - Occupational Licensing Boards - Complete Title 

Title 22 - Administrative Procedures - Repealed 

Title 23 - Community Colleges - Complete Title 

Title 24 - Independent Agencies ■ Complete Title 

Title 25 - Office of State Personnel - CompleteTitle 

Title 26 - Office of Administrative Hearings - Complete Title 

Title 27 - North Carolina State Bar - Complete Title 

North Carolina Administrative Code - Complete Code 

(Add $85.00 Shipping and Handling) 

CD-ROM North Carolina Administrative Code 

{upJiUed quanerh') 

CD-ROM North Carolina Administrative Code 

(When purchased with the Full Code in Print) 

Master Index 

Master Table of Contents 

Binder(s) Titled "OHicial North CamlinoAdminislratiYe Code" 



215 15321 
215 15401 
215 25 001 
21525 101 
21525 201 

215 25 301 
21525 311 

216 00 001 

216 10061 

21700 001 

217 15 101 
217 15 201 
217 15271 

217 15291 

21800 001 

218 10 050 

219 00 001 

219 10021 

219 10031 

220 00 001 
22100 001 
n/a 

223 00 001 

224 00 001 

225 00 001 

226 00 001 

227 00 001 
299 99 981 

266 00 001 

266 50 001 

288 50 001 
288 80 001 
299 90 000 



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